In re Brennan

         JTC Formal Complaint No. 99

          Bridget M. McCormack, Chief Justice, David F. Viviano, Chief Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices

          ORDER

         On order of the Court, the Judicial Tenure Commission's Bill of Costs is considered, and the respondent, Theresa M. Brennan, is ordered to pay costs of $16, 500.00 to the Commission.

          Cavanagh, J. (dissenting).

         I respectfully dissent. I disagree with the Judicial Tenure Commission's position that the costs, fees, and expenses requested by the Commission and imposed by the majority under MCR 9.202(B)^[1] are not a sanction. I believe they are, and I do not believe that this Court possesses the authority to impose sanctions beyond those specified in Const 1963, art 6, § 30(2). In light of the fact that a majority of this Court rejected this position when it adopted the amendment of MCR 9.202(B) in 2005 and, more importantly, given that respondent here has not challenged the constitutionality of this sanction, I agree with the majority that the costs, fees, and expenses requested by the Commission should be imposed under MCR 9.202(B). I disagree, however, with the Court's decision to impose less than the amount requested and substantiated by the Commission. While it is unclear from the language of MCR 9.202(B) whether the costs, fees, and expenses imposed must be directly attributable to fraudulent, deceitful, and intentionally misrepresentative conduct, I am persuaded by the Commission that even if that were the case, respondent's deceitful conduct permeated all aspects of the proceedings and further apportionment cannot be more narrowly tailored based on the record in this case. Given this conclusion, and because respondent offers no factual or legal basis for rejecting any of the requested costs, fees, and expenses or for otherwise reducing the amount requested, I would impose the full amount requested by the Commission.

         I. CONSTITUTIONAL AUTHORITY

         In 2005, the Court amended then-MCR 9.205 to include the following:

In addition to any other sanction imposed, a judge may be ordered to pay the costs, fees, and expenses incurred by the commission in prosecuting the complaint only if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or if the judge made misleading statements to the commission, the commission's investigators, the master, or the Supreme Court. [MCR 9.202(B).]

         The constitutionality of this amendment was contested from its inception. Justice Weaver authored a dissent, ^[2] arguing that the amendment was unconstitutional, and Justice Corrigan authored a concurrence, ^[3] arguing the opposite. I write today because I question the propriety of this amendment to the court rule.

         The Michigan Constitution provides:

On recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice. The supreme court shall make rules implementing this section and providing for confidentiality and privilege of proceedings. [Const 1963, art 6, § 30(2) (emphasis added).]

         The Constitution, therefore, contemplates four specific types of discipline: (1) censure, (2) suspension (with or without pay), (3) retirement, or (4) removal. That the Constitution provides for only these four types of discipline suggests the exclusion of all others under the well-known doctrine of expressio unius est exclusio alterius. See Pittsfield Charter Twp v Washtenaw Co, 468 Mich. 702, 712 (2003) ("[T]he expression of one thing suggests the exclusion of all others . . . .").

         The imposition of costs provided for in MCR 9.202(B) goes beyond the discipline contemplated in our Constitution and authorizes this Court to impose an additional form of punishment on a respondent who has engaged in certain types of dishonest conduct. Imposing costs is plainly not a censure, suspension, compelled retirement, or removal. And the fact that MCR 9.202(B) provides that costs may be imposed "[i]n addition to any other sanction" strongly suggests that the costs themselves are a type of, or "another," sanction. The only contrary assertion offered by the Commission is that the assessment of costs is not a sanction, but "simply a recognition that there is an actual expense to the taxpayers of the State of Michigan to prosecute ethical violations involving deceit perpetrated by a respondent judge." While this observation is undoubtedly true, I fail to see how it justifies an expansion of this Court's constitutional authority.

         I am also not persuaded that, whether or not the costs, fees, and expenses are a "sanction," they are legitimately imposed by way of this Court's authority to make rules "implementing" Const 1963, art 6, § 30 under Subsection (2) of that provision. Expanding the forms of discipline beyond that envisioned by that section of the Constitution is not simply "implementing" that section. Furthermore, I would not conclude that the Court's general power to "establish, modify, amend and simplify the practice and procedure in all courts of this state," ...