State Supreme Court considers limits on judicial misconduct probes

Rule would create 3-year statute of limitations

LANSING, Mich. (WXYZ) - A new rule being considered by the state's highest court could limit complaints of misconduct against judges.

Michigan's Supreme Court justices are considering adding a three-year statute of limitations to complaints filed against judges with the Judicial Tenure Commission. According to the proposed rule, “any complaint filed more than three years after the grievant knew…or should have known...shall be dismissed.”

Since 2014, 34 judges across the state have faced some sort of action that began at the Judicial Tenure Commission, which can range from a letter of caution to being removed from the bench entirely. 

"There’s just all kind of reasons why trying to defend something three years after the fact is difficult," said Brian Einhorn, an attorney in support of the rule change.

Einhorn has represented dozens of judges accused of misconduct, from former Judge Wade McCree—who carried on an affair with a litigant—to ex-Justice Diane Hathaway, who was sent to prison for bank fraud. 

"If a person knows that a judge did something three and a half or four years ago, I don’t think it’s fair to the judge to have to defend himself," Einhorn said.

But not all attorneys agree. Peter Henning is a former federal prosecutor and today is a law professor at Wayne State University.

"You’re talking about an individual who has immense power and can be quite intimidating," Henning said. "If you have certain types of cases, say for example a sexual harassment case, that may take years to surface because the individual who was harassed is going to be intimidated and might not have the strength to come forward for four or five years."

The proposed rule allows for claims outside of the three-year statute of limitations to be considered for "good cause," but critics fear the term is vague and could lead to prolonged legal battles.

"Should the judge be able to get off simply because (misconduct) happened more than three years ago?" asked Chanel 7's Ross Jones.

"But we’re dealing with something that’s probably not going to happen very often," Einhorn responded.

But there have been past examples of misconduct that could have been thrown out with a statute of limitations.

In Wayne County, Judge Bruce Morrow was disciplined for misconduct that happened years before a formal complaint was filed, including giving bond to a man after he was convicted of rape, even though state law didn’t allow it. 

Morrow was suspended for two months.

Today in Livingston County, Judge Teresa Brennan is under fire for her affair with a state police officer that testified in a murder trial in her courtroom. His testimony helped to send a man to prison. Their affair happened more than three years before it was finally discovered. It’s unclear if the JTC is investigating Brennan.

Still, attorney Brian Einhorn says judges shouldn’t have to defend themselves from years-old allegations, after memories fade and evidence becomes stale.

"There’s timing for doing everything," Einhorn said. "And there’s nothing different about a judge being accused of misconduct to a lawyer being accused of malpractice to a doctor being accused of malpractice."

Except in Michigan, there is no statute of limitations for complaints against lawyers or doctors, either. Giving judges special protection would be unique and improper, argues Carl Marlinga, who is a judge himself.

"The unintended effect, certainly, is to offer a level of protection for bad judges," Marlinga said. "With the judiciary, maximum integrity is the minimum qualification. Anything that would protect or shield a judge from scrutiny I just think is wrong."

A decision on the proposed statute of limitations and scores of other rules currently being considered by the Michigan Supreme Court could come any day. 

"What is the benefit?" asks Wayne State's Peter Henning. "What is the upside, other than what appears to be giving judges added protections?"

Contact 7 Investigator Ross Jones at ross.jones@wxyz.com or at (248) 827-9466.

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