                                                                            Michigan Supreme Court
                                                                                  Lansing, Michigan
                                                     Chief Justice: 	         Justices:



Opinion                                              Clifford W. Taylor 	     Michael F. Cavanagh
                                                                              Elizabeth A. Weaver
                                                                              Marilyn Kelly
                                                                              Maura D. Corrigan
                                                                              Robert P. Young, Jr.
                                                                              Stephen J. Markman




                                                                   FILED JUNE 13, 2008
 In re Honorable BEVERLEY
 NETTLES-NICKERSON, Judge, 30th
 Circuit Court.                                                     No. 133929

 _______________________________

 BEFORE THE ENTIRE BENCH

 MEMORANDUM OPINION.

        On June 11, 2008, the Court heard oral argument from the parties

 concerning the Judicial Tenure Commission’s findings and recommendations in

 this matter. The Judicial Tenure Commission’s Decision and Recommendation

 for Order of Discipline is attached as an exhibit to this opinion.

        We adopt in part the recommendations made by the Judicial Tenure

 Commission and order that the respondent is removed from office, effective

 immediately, on the basis of the following misconduct:

              (1)    Respondent twice made false statements under oath in
        connection with her divorce proceeding (Count I);

              (2)     Respondent made and solicited other false statements
        while not under oath, including the submission of fabricated
        evidence to the Judicial Tenure Commission (Count II);

              (3)   Respondent improperly listed cases on the no-progress
        docket (Count III);
              (4)  Respondent was absent excessively and engaged in
       belated commencement of proceedings, untimely adjournments, and
       improper docket management (Count IV);

               (5)    Respondent allowed a social relationship to influence
       the release of a criminal defendant from probation (Count VI); and

             (6)   Respondent recklessly flaunted her judicial office
       (Count IX).

See page 2 of the Judicial Tenure Commission’s Decision and Recommendation

for Order of Discipline in the attached exhibit.

       The respondent is no longer a judicial officer and will not be an incumbent

at the time of the 2008 30th Circuit Court election. We decline the Judicial Tenure

Commission’s     additional   recommendation       to   conditionally   suspend   the

respondent.

       On the basis of Counts I and II, costs are imposed on the respondent judge

in the amount of $12,000. 	 CR 9.205(B).
                          M

       This judgment is effective immediately.



                                                   Clifford W. Taylor
                                                   Michael F. Cavanagh
                                                   Marilyn Kelly
                                                   Maura D. Corrigan
                                                   Robert P. Young, Jr.
                                                   Stephen J. Markman




                                          2

                         STATE OF MICHIGAN


                               SUPREME COURT 



In re Honorable BEVERLEY
NETTLES-NICKERSON, Judge, 30th
Circuit Court.                                              No. 133929

_______________________________


      WEAVER, J. (concurring in part and dissenting in part).

      I concur in the majority’s decision and reasons for removing respondent

Judge Beverley Nettles-Nickerson from her current position as judge of the 30th

Circuit Court.

      I dissent from the majority’s decision to assess against the respondent any

costs of the Judicial Tenure Commission proceeding. As I stated previously in

regard to the proposed assessment of costs against a respondent judge:

             [T]here is no constitutional authority to assess costs against a
      judge. Subsection 2 of Const 1963, art 6, § 30 provides that “the
      supreme court may censure, suspend with or without salary, retire or
      remove a judge . . . .” As I stated in my concurrence in In re
      Noecker, 472 Mich 1, 18-19 (2005), “Nothing in this constitutional
      provision gives this Court any authority to discipline the judge by
      assessing the judge the costs of the Judicial Tenure Commission
      proceedings against him or her.” [In re Trudel, 477 Mich 1202,
      1203 (2006) (Weaver, J., concurring).]

      Further, as I stated in a subsequent order by a majority of this Court

granting a default judgment against Judge Trudel:

            While under Const 1963, art 6, § 30(2) the Supreme Court
      also has the authority to “make rules implementing this section
      [concerning the Judicial Tenure Commission],” the Supreme Court
      cannot create Judicial Tenure Commission rules that authorize the
       Judicial Tenure Commission to recommend to the Supreme Court
       something that the Supreme Court does not have constitutional
       authority to do. The rule-making authority available to the Supreme
       Court is limited to making rules “implementing this section.” And,
       because “this section” provides that “the supreme court may censure,
       suspend with or without salary, retire or remove a judge,” this Court
       only has the authority to make rules implementing the section in
       connection with the censure, suspension with or without salary, or
       retirement or removal of a judge. Assessment and collection of
       costs is not included in this authority to discipline a judge. As the
       Supreme Court does not have authority to assess and collect costs
       granted to it by the Michigan Constitution, there is no corresponding
       rule-making authority to provide for the Judicial Tenure
       Commission to recommend to the Supreme Court the assessment
       and collection of costs against a respondent judge. This Court may
       not delegate authority that it lacks in the first place. [In re Trudel,
       480 Mich 1213, 1214 (2007) (Weaver, J., dissenting).]

       Thus, the majority’s use of its unconstitutional, law-creating court rule

authorizing the assessment of costs against disciplined judges is an unrestrained

interpretation of Const 1963, art 6, § 30. The majority of this Court should

exercise judicial restraint in its interpretation of Const 1963, art 6, § 30 and leave

it to the people of Michigan to decide, by constitutional amendment, if they want

costs assessed against disciplined judges.

       Additionally, given the vast power vested in the executive director and the

general counsel of the Judicial Tenure Commission, and given the possibility of

due process violations against a respondent judge, it is becoming apparent that the

rules concerning the operation of the Judicial Tenure Commission, created by this

Court pursuant to Const 1963, art 6, § 30, should be reexamined by this Court and

the people.


                                                 Elizabeth A. Weaver

                                          2

EXHIBIT

