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In re Simpson

Supreme Court of Michigan

July 25, 2017

In re Honorable J. CEDRIC SIMPSON, Judge, 14A District Court.

          Argued October 6, 2016

         The Judicial Tenure Commission (JTC) filed a formal complaint against 14-A District Court Judge J. Cedric Simpson, alleging three counts of judicial misconduct arising from an incident that occurred in Pittsfield Township on September 8, 2013. Around 4:22 a.m. on that date, Crystal M. Vargas, one of respondent's interns, was involved in a motor vehicle accident near respondent's home. Vargas immediately called respondent, and he arrived at the scene approximately 10 minutes after the accident had occurred. As the investigating officer was administering a field sobriety test, respondent identified himself to the officer as a judge, had a conversation with Vargas without the officer's permission, and asked the officer whether Vargas needed a ride. The investigating officer administered a preliminary breath test (PBT) to Vargas, which indicated that Vargas had a breath-alcohol content (BAC) over the legal limit, and she was placed under arrest. Later breathalyzer tests also indicated that Vargas's BAC was over the legal limit but showed a lower BAC than did the PBT. Respondent contacted the township attorney who would be handling Vargas's case, said that Vargas was his intern, and noted that Vargas would likely be involved in one of the attorney's upcoming mediation cases. Respondent also observed the discrepancy between the PBT and the breathalyzer results and requested a copy of the police report. Respondent later contacted the attorney to discuss defense attorneys Vargas might retain. After an investigation into respondent's conduct, the JTC filed its formal complaint alleging that respondent had interfered with the police investigation into the accident, interfered with Vargas's prosecution, and made misrepresentations to the JTC. The Honorable Peter Houk, the master appointed to the case, found by a preponderance of the evidence that respondent's actions constituted judicial misconduct on all three counts. The JTC agreed with these findings and concluded that respondent's conduct violated the Michigan Code of Judicial Conduct and also constituted misconduct in office and conduct clearly prejudicial to the administration of justice under Const 1963, art 6, § 30(2). The JTC recommended that respondent be removed from office and that costs of $7, 565.54 be imposed on him. Respondent petitioned the Supreme Court, requesting that it reject or modify the JTC's decision and recommendation. Respondent also moved for a remand to the JTC to consider some allegedly exculpatory information he had not received but that had been disclosed to the JTC examiner. The Supreme Court remanded the case to the JTC, the JTC remanded the case to the master, and the master decided that his previous findings were unaffected by the new evidence. The JTC also decided that the evidence did not affect its decision and recommendation. Respondent's petition to reject or modify the JTC's decision and recommendation remained before the Court.

         In an opinion by Justice Viviano, joined by Justices McCormack, Bernstein, and Larsen, the Supreme Court held:

The JTC correctly found that respondent committed judicial misconduct, but it erred by concluding that removal from office was warranted. A suspension of nine months without pay was proportional to the misconduct. Respondent was properly ordered to pay costs of $7, 565.54 because he engaged in conduct involving "intentional misrepresentations" or "misleading statements" under MCR 9.205(B).
1. The JTC properly concluded that the first two allegations of judicial misconduct against respondent-interference with the police investigation and interference with the prosecution-were proved by a preponderance of the evidence. With respect to the first allegation, the facts showed that respondent approached Vargas and the investigating officer as sobriety tests were being performed and interrupted the sobriety-testing process. Given that respondent was certainly aware that the officer was investigating whether Vargas was under the influence of alcohol or a controlled substance, when respondent introduced himself to the officer as "Judge Simpson, " he either failed to prudently guard against influencing the investigation or used his judicial office in an effort to interfere with it. Next, respondent spoke to Vargas during the investigation without the officer's permission. Finally, respondent's question regarding whether Vargas simply needed a ride was a transparent suggestion to the officer to end his investigation and allow respondent to drive Vargas away from the scene. Respondent's behavior at the accident scene constituted judicial misconduct because he used his position as a judge in an effort to scuttle a criminal investigation of his intern. With respect to the second allegation, the evidence indicated that respondent interfered with the prosecution by improperly acting as Vargas's legal advocate. Respondent succeeded in delaying the issuance of charges against Vargas when he convinced the township attorney to hold off on the case. Respondent consulted the township attorney about the best defense attorney to represent Vargas, raised a question about the discrepancy between the results of the PBT and the breathalyzer, and requested a copy of the police report.
2. With respect to the third allegation-misrepresentations to the JTC-the JTC's finding that respondent made an intentional misrepresentation or a misleading statement when he testified under oath that he had not had contact with Vargas between midnight and 4:00 a.m. on the morning of the accident was not proved by a preponderance of the evidence. Although respondent's testimony about contacts during that time frame was inaccurate, his testimony suggested that he was uncertain about the contact, not that he intentionally misrepresented whether he and Vargas had contact. However, the JTC's finding that respondent made an intentional misrepresentation or a misleading statement with regard to the purpose of the thousands of text messages and phone calls he and Vargas exchanged from August 2013 through November 2013 was proved by a preponderance of the evidence. Respondent admitted to the voluminous contacts between himself and Vargas but indicated that the majority of the contacts concerned a complex case Vargas was working on for respondent, but the record indicated that respondent and Vargas had already engaged in an excessive amount of communication before respondent received the evidence in the complex case. Accordingly, the JTC's finding that respondent had made an intentional misrepresentation or a misleading statement was proved by a preponderance of the evidence. Although the JTC's findings were not based on facts alleged in the complaint, because respondent did not challenge the JTC's findings on that basis, it was unnecessary to decide whether the JTC's consideration of facts not alleged in the complaint was improper.
3. Respondent's interference with the police investigation and prosecution of his intern along with the intentional misrepresentation or misleading statement he made in his answer to the complaint in explaining the nature of the extensive communications between him and Vargas warranted a nine-month suspension without pay and the imposition of costs. The JTC was generally correct in concluding that four of the seven factors set forth in In re Brown, 461 Mich. 1291 (2000), weighed in favor of a more severe sanction. However, the Court's overriding duty in deciding the appropriate sanction to impose in judicial disciplinary proceedings is to treat equivalent cases of misconduct in an equivalent manner and unequivalent cases in a proportionate manner. The Supreme Court has consistently imposed the most severe sanction of removal on judges who testified falsely under oath. In this case, respondent's false statement regarding the nature of his extensive communications with Vargas was given in the answer to the complaint. The JTC did not prove that respondent's answer was verified as required by MCR 9.209(B)(1), and so it could not establish that the answer was given under oath. Accordingly, the most severe sanction of removal was not warranted in this case. Respondent's case was most akin to In re Lawrence, 417 Mich. 248 (1983), because, in both cases, the respondent's misconduct included misuse of the judicial office to benefit another and a nontestimonial misrepresentation. Because the respondent in Lawrence was suspended without pay for nine months for similarly serious misconduct, an unpaid suspension of nine months was warranted in this case and was sufficient to protect the public from this type of judicial misconduct in the future. Under MCR 9.205(B), in addition to any other sanction imposed, a judge may be ordered to pay the costs, fees, and expenses incurred by the JTC in prosecuting the complaint if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation or if the judge made misleading statements to the JTC, the JTC's investigators, the master, or the Supreme Court. Because respondent engaged in conduct involving "intentional misrepresentation" or "misleading statements" under MCR 9.205(B), the JTC properly requested imposition of the costs, fees, and expenses it incurred in prosecuting the complaint.
4. Contrary to the suggestion of the partial dissent, there are many reasons not to address allegations of misconduct that were not found and recommended to the Court by the JTC. In particular, In re Mikesell, 396 Mich. 517 (1976), held that to do so would violate our state's Constitution. It would also violate the court rules, which suggest that the Court has the authority only to accept or reject the recommendations of the JTC unless they relate to the sanction. Further, a respondent judge is entitled to notice of the charges and a reasonable opportunity to respond to them. Without such notice, it is not clear how a respondent judge would know which charges are at issue and, therefore, which ones he or she should substantively address when a case proceeds to the Michigan Supreme Court. Whatever could be said about such a regime, it would not provide a full panoply of procedural guarantees for adjudicating allegations of judicial misconduct.

         Nine-month suspension without pay and costs of $7, 565.54 imposed.

         Chief Justice Markman, joined by Justice Zahra, concurring in part and dissenting in part, would have considered an additional two occasions on which respondent lied under oath- without regard to the fact that the two lies were not reflected in the complaint's allegations or the JTC's recommendation-and weighed them accordingly to determine respondent's proper sanction. Respondent falsely responded, under oath, to a question before the master about his purpose in going to the accident scene, and he also gave a false explanation in his sworn testimony before the master to explain his purpose for calling the township attorney. The majority's rationale for not taking the two sworn lies into consideration is apparently that neither instance of misconduct was specifically alleged in the JTC's recommendation. These additional lies are further examples of the misconduct with which respondent is charged and, if taken into consideration, would increase the sanction imposed on respondent. Nothing in past caselaw supports the majority's implicit reasoning for its failure to consider the two additional lies. Misconduct discernable from the record does, under Michigan law, constitute a basis on which this Court may impose judicial discipline, even if that misconduct is not specifically identified in the JTC's recommendation. Morever, respondent in the instant case would suffer no prejudice or any miscarriage of justice were this Court to hold him accountable for his lies offered while under oath. Respondents are aware of their obligation to tell the truth in disciplinary proceedings and that they could be disciplined for false testimony. A respondent should also not be given a lesser sanction for a false statement in answer to the complaint's allegations simply because the JTC has failed to prove that the respondent's answers were verified. Any untrue statement by a respondent frustrates this Court's constitutional obligation to uphold the integrity and reputation of the judiciary. An appropriate sanction in this case should take into account all of respondent's lies.

          Justice Wilder took no part in the decision of this case.

         BEFORE THE ENTIRE BENCH (except Wilder, J.)

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder

          OPINION

          Viviano, J.

         This case is before this Court on the recommendation of the Judicial Tenure Commission (JTC) that respondent, 14A District Court Judge J. Cedric Simpson, be removed from office and ordered to pay $7, 565.54 in costs. Respondent has filed a petition requesting that this Court reject or modify the recommendation. After reviewing the record and considering the parties' arguments, we agree with the JTC that respondent committed judicial misconduct and that the imposition of costs is warranted. However, we disagree with the JTC that removal from office is warranted. Instead, we conclude that a nine-month suspension without pay is the appropriate sanction.

         I. FACTS

         Respondent is a judge of the 14A District Court and therefore subject to the Michigan Code of Judicial Conduct. He has no history of misconduct. At the time relevant to this case, he was an adjunct professor at the Ann Arbor campus of Western Michigan University Cooley Law School. During the 2013 summer term, Crystal Vargas was a student in respondent's Pretrial Skills class. In June 2013, Ms. Vargas sought an internship with respondent in the 14A District Court. Respondent accepted Ms. Vargas, and she started her internship on July 10, 2013. Within days, respondent and Ms. Vargas began communicating with each other by telephone call and text message on a frequent basis. Cellular records indicate that several thousand communications were exchanged between respondent and Ms. Vargas from July 23, 2013, to November 30, 2013. Those communications were exchanged at all times of the day and night and on weekends as well.

         On September 7, 2013, respondent and Ms. Vargas exchanged seven phone calls and numerous text messages. This was consistent with their pattern of communication during that summer and fall. On September 8, 2013, respondent and Ms. Vargas exchanged six text messages between 1:25 a.m. and 2:29 a.m., and they exchanged an additional six text messages between 4:20 a.m. and 4:23 a.m. At about the time the latter group of text messages was exchanged, Ms. Vargas was involved in a motor vehicle accident at the intersection of Platt Road and Michigan Avenue, less than two miles from respondent's home. Ms. Vargas called respondent at 4:24 a.m., shortly after the accident. Within a few minutes, while Ms. Vargas was still on the phone with respondent, Pittsfield Township Police Officer Robert Cole arrived at the scene and began investigating whether Ms. Vargas was under the influence of alcohol. At about 4:30 a.m., as Officer Cole was administering field sobriety tests to Ms. Vargas, respondent arrived at the scene. Respondent approached Officer Cole and identified himself as "Judge Simpson." Officer Cole recognized respondent as a judge, stopped the tests, walked toward respondent, and proceeded to briefly explain that Ms. Vargas had been involved in an accident.[1] Respondent then approached Ms. Vargas without Officer Cole's permission and had a brief conversation with her. Officer Cole informed respondent that Ms. Vargas was okay and that he wanted to determine whether she was fit to drive. Respondent asked, "Well, does she just need a ride or something?" Respondent moved away from the immediate vicinity, and Officer Cole continued with the sobriety tests. Based on the results of the tests, Officer Cole administered a preliminary breath test (PBT) to Ms. Vargas. The PBT indicated that Ms. Vargas had a breath-alcohol content (BAC) of 0.137%, and Officer Cole placed her under arrest.

         Afterward, respondent left the scene, and Ms. Vargas was transported to the Pittsfield Township Police Department. Because Officer Cole had never had a judge appear at an investigation scene, he promptly informed his supervisor, Sergeant Henry Fusik, about respondent's appearance. Sergeant Fusik, in turn, informed the Director of Public Safety, Chief Matthew Harshberger, about the situation. Sergeant Fusik instructed Officer Cole to process Ms. Vargas's case as he would any other case. Officer Cole subsequently administered two breathalyzer tests to Ms. Vargas, both of which indicated a BAC of 0.10%.

         On September 10, 2013, the day before the police department issued a warrant request to Pittsfield Township Attorney Victor Lillich, Mr. Lillich received a telephone call from respondent. According to Mr. Lillich, respondent told him during the telephone conversation that Ms. Vargas was his intern and a "good kid" who was in a "pretty bad relationship." Respondent also told Mr. Lillich that Ms. Vargas "would be the one who would probably be doing some of the work" on an upcoming mediation case with which Mr. Lillich was involved. In addition, respondent observed that there was a discrepancy between the PBT and the breathalyzer results. Mr. Lillich responded that the discrepancy "would not be a big concern" in his decision to issue charges. Respondent requested, and Mr. Lillich agreed to provide him with, a copy of the police report.

         On September 15, 2013, Mr. Lillich e-mailed the police report to respondent. In the e-mail, Mr. Lillich advised respondent that the case presented "nothing out of the ordinary" beyond the discrepancy between the PBT and the breathalyzer results, and Mr. Lillich stated that he "would be authorizing an OWI 1st" charge against Ms. Vargas.[2]

         On September 17, 2013, respondent again called Mr. Lillich. According to Mr. Lillich, the "conversation was primarily about" criminal defense attorneys. In particular, Mr. Lillich explained that he and respondent discussed the names of "good defense attorneys" that Ms. Vargas could retain. Additionally, Mr. Lillich agreed to "sit" on the case until Ms. Vargas retained an attorney.

         In October 2013, Chief Harshberger sent an e-mail to Mr. Lillich inquiring about the status of the Vargas case. Mr. Lillich replied that he was "sitting on" the case "out of respect and defference [sic] to Judge Simpson." A few days later, however, Mr. Lillich returned the case to the Pittsfield Township Police Department as "denied, " with a notation to refer the case to the county prosecutor. The return document indicated that Mr. Lillich disqualified himself from the case "to avoid any inference of impropriety" because respondent had contacted him regarding "his intern, Crystal Vargas."[3]

         The JTC investigated respondent for his conduct related to the Vargas case. On November 12, 2014, the JTC filed a formal complaint against respondent, alleging that he had committed the following three counts of misconduct: (1) interfering with a police investigation, (2) interfering with a prosecution, and (3) making misrepresentations to the JTC. On December 17, 2014, this Court appointed the Honorable Peter Houk to serve as master. The master conducted a three-day hearing and then issued his report on April 28, 2015, finding that each of the three counts of misconduct was proved by a preponderance of the evidence.

         On September 1, 2015, the JTC issued its decision and recommendation for discipline. The JTC found by a preponderance of the evidence that respondent interfered with a police investigation, interfered with a prosecution, and made intentional misrepresentations or misleading statements to the JTC. Further, the JTC concluded that the misconduct constituted "misconduct in office" and "conduct . . . clearly prejudicial to the administration of justice, " Const 1963, art 6, § 30(2), [4] and that respondent violated the Michigan Code of Judicial Conduct Canons 1, [5] 2(A), [6] and 2(B), [7] as well as MCR 9.104(1), (2), (3), and (4).[8] In determining the appropriate recommended sanction, the JTC assessed the factors set forth in In re Brown[9] and concluded that the misconduct implicated four of the seven Brown factors and thus "a more severe sanction" was warranted. The JTC then concluded "that removal from office [was] an appropriate and proportional sanction for Respondent's misconduct." In addition, the JTC requested the imposition of costs in the amount of $7, 565.54 because "Respondent made intentional misrepresentations or misleading statements to the [JTC] in his answer to the formal complaint, and during his testimony at the public hearing."[10]

         Thereafter, respondent filed a petition in this Court to reject or modify the JTC's decision and recommendation. In addition, respondent filed a motion to remand to the JTC for further proceedings based on allegedly exculpatory information that was disclosed as a result of a Freedom of Information Act (FOIA) request to the Pittsfield Township Department of Public Safety. Respondent claimed that the FOIA request revealed significant exculpatory evidence concerning the first two counts of the complaint that had been disclosed to the JTC examiner but not to respondent.[11] We remanded the case to the JTC. The JTC, in turn, remanded the case to the master for a determination of whether the evidence would alter his findings, how the nondisclosure occurred, and the reasons for the nondisclosure. After conducting a two-day hearing, the master concluded that the evidence did not alter his previous findings. In addition, the JTC concluded that the evidence did not affect its decision and recommendation.[12]Respondent's petition to modify or reject the JTC's decision and recommendation is now before this Court.

         II. STANDARD OF REVIEW

         "Judicial tenure cases come to this Court on recommendation of the JTC, but the authority to discipline judicial officers rests solely in the Michigan Supreme Court."[13]This Court reviews de novo the JTC's findings of fact, conclusions of law, and recommendations for discipline.[14] "The Court may accept or reject the recommendations of the JTC or modify them by imposing greater, lesser, or entirely different sanctions."[15]The examiner has the burden to prove each allegation of judicial misconduct by a preponderance of the evidence.[16] " '[I]t is the JTC's, not the master's conclusions and recommendations that are ultimately subject to review by this Court.' "[17]

         III. ANALYSIS A. FINDINGS OF FACT

         1. COUNT

         1: INTERFERENCE WITH THE POLICE INVESTIGATION

         The JTC concurred with the master's finding with respect to Count 1, stating that "a preponderance of the evidence showed that Respondent used his judicial office to interfere, or to attempt to interfere, with the police investigation." We agree.

         The facts show that respondent exited his vehicle and approached Ms. Vargas and Officer Cole as sobriety tests were being performed. Indeed, respondent interrupted the sobriety-testing process. Respondent, who had prosecuted numerous drunk-driving cases on behalf of Superior Township before he became a judge, was certainly aware that Officer Cole was investigating whether Ms. Vargas was under the influence of alcohol or a controlled substance. Given these circumstances, when respondent began his interaction with Officer Cole by introducing himself as "Judge Simpson, " he appears at best to have failed to prudently guard against influencing the investigation and at worst to have used his judicial office in a not-so-subtle effort to interfere with the investigation. Indeed, but for respondent's status as a judge, Officer Cole would not have spoken to respondent until Officer Cole completed his investigation. Next, respondent spoke to Ms. Vargas during the investigation without Officer Cole's permission-another action an ordinary citizen would not have been permitted to take. Finally, respondent's question- "Well, does she just need a ride or something?"-was a transparent suggestion to Officer Cole to end his investigation and allow respondent to drive Ms. Vargas away from the scene.[18]

         We believe that respondent's behavior at the accident scene constitutes judicial misconduct. Respondent used his position as a judge in an effort to scuttle a criminal investigation of his intern. Count 1 was proved by a preponderance of the evidence.

         2. COUNT 2: INTERFERENCE WITH THE CRIMINAL PROSECUTION

         The JTC concurred with the master's finding with respect to Count 2, stating that "a preponderance of the evidence showed that Respondent interfered, or attempted to interfere, with the prosecution of the criminal case against Ms. Vargas." We agree.

         The facts show that before Mr. Lillich, the township prosecutor, had even received a warrant request, respondent contacted him to discuss his intern's arrest.[19] Respondent described Ms. Vargas as a "good kid" who was in a "pretty bad relationship." In addition, respondent reminded Mr. Lillich that he had met Ms. Vargas in the past and would be working with her in the future. Finally, respondent raised an evidentiary issue-the discrepancy between the PBT and breathalyzer results. We believe respondent's purpose in making these statements was to advocate on behalf of Ms. Vargas and to persuade Mr. Lillich to deny the impending warrant request.

          After receiving a copy of the police report, respondent again contacted Mr. Lillich. During this conversation, as found by the master and the JTC, respondent discussed with Mr. Lillich potential defense attorneys to represent Ms. Vargas. In addition, the conversation resulted in Mr. Lillich's agreeing to "sit" on the case until Ms. Vargas retained an attorney who could discuss any potential "problems" with the case. Several weeks later, when Chief Harshberger inquired about the status of the case, Mr. Lillich acknowledged respondent's involvement in the matter and stated that he was "sitting on" the case out of respect and deference to respondent. Indeed, respondent's involvement in the case was cited as the reason that Mr. Lillich denied authorization of the warrant and disqualified himself.

         We believe that each of these actions-individually and taken together- constitutes judicial misconduct. Respondent improperly acted as a legal advocate for Ms. Vargas and used his position as a judge to thwart the township's criminal prosecution of his intern. And he succeeded for a time in delaying the issuance of the charges. Count 2 was proved by a preponderance of the evidence.

         3. COUNT 3: MISREPRESENTATIONS

         With respect to Count 3, we are confronted with an unusual circumstance: None of the JTC's findings is traceable to the allegations of misconduct in the complaint.[20] The JTC's allegations concerning respondent's alleged misrepresentations are contained in ¶¶ 64-85 of the complaint. Although the master found that certain of these allegations were proved by a preponderance of the evidence and that others were not, [21] the JTC did not adopt any of these findings. Instead, the JTC made two additional findings not based on the allegations in the complaint, only one of which was addressed by the master.

         In particular, the JTC found that respondent made "an intentional misrepresentation or misleading statement when he testified under oath at the public hearing that he had no contact with Ms. Vargas between midnight and 4:00 a.m. on September 8, 2013." The JTC also found that respondent made "an intentional misrepresentation or a misleading statement" in his answer to ¶ 65 of the complaint regarding the purpose of the large volume of telephone calls and text messages he exchanged with Ms. Vargas between August 1, 2013, and November 30, 2013. Because we have long held that our focus in judicial disciplinary proceedings is on the JTC's findings, [22] it is to those findings that we now turn.

          The JTC first found that "[r]espondent made an intentional misrepresentation or misleading statement when he testified under oath at the public hearing that he had no contact with Ms. Vargas between midnight and 4:00 a.m. on September 8, 2013." In particular, the JTC found that the following exchange constituted a misrepresentation or misleading statement under oath:

Examiner: Did you have any contact with Ms. Vargas between midnight and 3:30 that morning?
Respondent: Which morning?
Examiner: I'm sorry. On the day that she was -- on the morning she was arrested, did you have any contact with her between midnight and 3:30 or 4:00 that morning?
Respondent: No.
Examiner: And when you say no, that's not by text messages or anything else; correct?
Respondent: I don't believe there were any text messages. I don't believe that there was any contact.

         In fact, telephone records indicated that respondent and Ms. Vargas exchanged six text messages between 1:25 a.m. and 2:29 a.m. on September 8, 2013. Thus, respondent did not provide accurate information when he testified that he did not have any contact with Ms. Vargas during that time frame.

         Nonetheless, it is not clear that respondent made an intentional misrepresentation to the JTC through this testimony. After answering "no" to the examiner's question about whether he had any contact with Ms. Vargas between midnight and 3:30 or 4:00 on the morning at issue, respondent equivocated by adding that he did not "believe" that there was any communication.[23] Moreover, respondent acknowledged during the hearing that he communicated with Ms. Vargas "into the evening" of September 7, 2013. And the JTC found that respondent did not testify falsely about his contacts with Ms. Vargas after 4:00 a.m. on September 8, 2013, i.e., the period during which the accident occurred. Therefore, considering this context, it appears that respondent simply may not have recalled the precise timing of a few of the many communications he had with Ms. Vargas-communications that were not central to the allegations of misconduct in this case.

         We find that respondent's testimony on this point was careless and that he provided inaccurate information. However, we do not believe that the JTC has sustained its burden of proving by a preponderance of the evidence that respondent made an intentional misrepresentation or misleading statement regarding his contacts with Ms. Vargas before 4:00 a.m. on September 8, 2013. Consequently, we reject the JTC's conclusion that this alleged act constituted misconduct.

         Second, the JTC found that "[r]espondent made an intentional misrepresentation or a misleading statement regarding the purpose for the thousands of texts [sic] messages he exchanged with Ms. Vargas between August 1, 2013, and November 30, 2013." This particular finding refers to respondent's answer to ¶ 65 of the formal complaint, in which, after admitting the factual allegation, respondent stated that "the vast bulk of the communications related to a complex, sensitive project Ms. Vargas was working on for Judge Simpson in the case of People v Nader Nassif, #CRW 13-1244-FH." Under MCR 9.209(B)(1), the answer to the complaint must be "verified by the respondent." Although the answer was signed by respondent, the JTC has not shown that it was verified. There is no indication in the record that respondent verified the answer by oath or affirmation, MCR 2.114(B)(2)(a), or by a signed and dated declaration, MCR 2.114(B)(2)(b). Nevertheless, any misrepresentations or misleading statements in respondent's unverified answer may still be grounds for a finding of misconduct. See MCR 9.209(B)(2) ("Wilful concealment, misrepresentation, or failure to file an answer and disclosure are additional grounds for disciplinary action under the complaint.").

         With regard to this finding of misconduct, we agree with the JTC that respondent made "an intentional misrepresentation or a misleading statement." The sheer number of communications-which were frequently exchanged during the night and on weekends- is inconsistent with respondent's explanation that the communications related to court business, including an in camera review of evidence in the Nassif case. Moreover, respondent testified that he learned that the Nassif case was assigned to him on August 11 or 12, and that his court did not receive the evidence for the in camera review until September 12. Yet respondent and Ms. Vargas had already exchanged a surfeit of communications by then. In addition, this explanation was inconsistent with another explanation advanced by respondent-that the communications were attributable to the "problems" that Ms. Vargas was having with her former boyfriend, who allegedly had been violent toward her.[24]

         On the basis of the foregoing evidence, we affirm the JTC's finding that respondent made "an intentional misrepresentation or a misleading statement" when he attributed the "vast bulk" of his communications with Ms. Vargas to the Nassif case.[25]We believe the JTC's finding has been proved by a preponderance of the evidence.

         B. CONCLUSIONS OF LAW

         As stated above, the JTC concluded that respondent's misconduct constituted misconduct in office, Const 1963, art 6, § 30(2) and MCR 9.205; conduct clearly prejudicial to the administration of justice, Const 1963, art 6, § 30(2) and MCR 9.205; a failure to establish, maintain, enforce, and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to Canon 1; irresponsible or improper conduct that erodes public confidence in the judiciary, contrary to Canon 2(A); conduct involving impropriety and the appearance of impropriety, contrary to Canon 2(A); a failure to respect and observe the law and to conduct oneself at all times in a manner that would enhance the public's confidence in the integrity and impartiality of the judiciary, contrary to Canon 2(B); conduct that is prejudicial to the proper administration of justice, contrary to MCR 9.104(1); conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, contrary to MCR 9.104(2); conduct that is contrary to justice, ethics, honesty, or good morals, contrary to MCR 9.104(3); and conduct that violates the standards or rules of professional conduct adopted by the Supreme Court, contrary to MCR 9.104(4).[26]

         We agree with the JTC in most respects but we decline to decide whether respondent committed misconduct in office, contrary to Const 1963, art 6, § 30(2) and MCR 9.205, because ...


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