Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  March 26, 2014                                                                      Robert P. Young, Jr.,
                                                                                                 Chief Justice

                                                                                       Michael F. Cavanagh
                                                                                       Stephen J. Markman
  148512                                                                                   Mary Beth Kelly
                                                                                            Brian K. Zahra
                                                                                    Bridget M. McCormack
                                                                                          David F. Viviano,
  In re:                                                                                              Justices


  HONORABLE DENNIS M. WILEY                                        SC: 148512
  Berrien County District Court                                    RFI No. 2013-20302

  BEFORE THE JUDICAL TENURE COMMISSION

  __________________________________________/

         On order of the Court, the Judicial Tenure Commission has issued a Decision and
  Recommendation for Order of Discipline, and the Honorable Dennis M. Wiley has
  consented to the Commission’s findings of fact, conclusions of law, and recommendation
  of a public censure.

          As we conduct our de novo review of this matter, we are mindful of the standards
  set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000):

           [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;
           (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.
                                                                                        2

       In this case those standards are being applied to the following findings of fact of
the Judicial Tenure Commission, which adopted the admissions contained in the
settlement agreement. We adopt them as our own.

      1.     Prior to December 4, 2012, LaRue Ford communicated with staff of
             the Berrien County Trial Court regarding outstanding fines that she
             owed which had resulted in the suspension of her Michigan driver’s
             license.
      2.     Pursuant to direction by the court staff, Ms. Ford paid the balance
             that was found by the staff to be owed.
      3.     On December 4, 2012, Ms. Ford went to the Niles Division of the
             Berrien County Trial Court to investigate why a “hold” remained on
             her driver’s license.
      4.     The staff in the clerk’s office reviewed Ms. Ford’s case history and
             discovered that a $45 reinstatement fee in Case No. 2004-403400-ST
             still had not been paid.
      5.     Ms. Ford became upset, as she believed that the court staff in St.
             Joseph had previously advised her that all fees had been paid and the
             hold on her driver’s license should have been lifted. She was also
             upset by the possible imposition of a credit card service fee.
      6.     Several Niles Division court clerks, if called as witnesses, would
             testify that Ms. Ford used the term “fuckers” or “motherfuckers” on
             one or two occasions when dealing with them.
      7.     None of the clerks ever felt threatened, or that they were in danger,
             when dealing with Ms. Ford.
      8.     Ms. Ford never interfered with the clerks’ ability to perform their
             duties while she was in the courthouse. However, clerks would
             testify that she was disruptive, and they had to pay extra attention to
             her to make sure she did not get out of control.
      9.     On December 4, 2012, Respondent [5th District Court Judge Dennis
             M. Wiley] was presiding in the Niles Division of the Berrien County
             Trial Court.
      10.    On that day, Respondent was in the non-public office area of the
             court, and overheard court clerk Katie Pugh tell court office manager
             Carol Brohman that Ms. Ford had called them “fuckers’ or
             “motherfuckers.” If called as a witness, Ms. Pugh would testify that
             Ms. Ford had said this “after all the help we gave her.”
      11.    The conversation between Ms. Pugh and Ms. Brohman did not
             initially involve Respondent.
                                                                              3

12.   When Respondent overheard the discussion, Respondent approached
      the individuals and asked Ms. Pugh to describe the events to
      Respondent.
13.   When Ms. Pugh recounted the events, she reported that Ms. Ford
      had referred to the clerk staff as “fuckers” and/or “motherfuckers.”
14.   Ms. Pugh also reported that Ms. Ford was expected to return to the
      courthouse to pay a fee to have the hold on her license removed.
15.   Ms. Pugh did not tell Respondent that she or any other court staff
      had felt threatened by Ms. Ford during the incident, or that Ms. Ford
      had in any way interfered with the regular operation of the court
      during the incident. If called as a witness, Respondent would testify
      that the clerks appeared to him to be upset and distracted from their
      duties.
16.   Respondent directed that Ms. Ford be brought before him in his
      courtroom when she returned to the courthouse.
17.   Respondent did not discuss the preparation of a petition for order to
      show cause/bench warrant regarding Ms. Ford’s conduct with any
      court employee at that time.
18.   When Ms. Ford returned on December 4, 2012, and after she paid
      the outstanding fee, Respondent’s court bailiff brought her to
      Respondent’s courtroom, in accordance with Respondent’s directive.
19.   At that time, the petition had not yet been prepared.
20.   Respondent arraigned Ms. Ford for contempt of court outside of his
      presence, based only on the unsworn conversation he had heard
      between Ms. Pugh and Ms. Brohman, his own observations, and his
      conversation with Ms. Pugh.
21.   Respondent did not disclose that he had had the previously
      mentioned conversation with Ms. Pugh.
22.   Respondent did not disqualify himself, or raise the issue of his
      possible disqualification, based on his receipt of the information
      communicated in the previously mentioned conversation with Ms.
      Pugh.
23.   Respondent set December 18, 2012 for a hearing on the contempt
      charge.
24.   Respondent set a bond of $5,000/10%.
25.   Ms. Ford did not post bond and spent the night in jail.
                                                                             4

26.   Ms. Ford posted $500 bond on December 5, 2012 and was released
      from custody.
27.   On December 18, 2012, Ms. Ford appeared for the contempt
      hearing.
28.   At that proceeding, she was represented by attorney Shannon Sible,
      who was assigned counsel.
29.   Mr. Sible requested that the contempt hearing be adjourned, as he
      wanted additional time to review the law applicable to the matter.
30.   Respondent adjourned the matter and increased Ms. Ford’s bond
      from $5,000/10% to $5,000/cash or surety, after her counsel
      requested that she be allowed to travel to Arizona and go to work as
      a long haul truck driver. This was the first time that Respondent
      heard that Ms. Ford lived in Arizona.
31.   The court returned the $500.00 Ms. Ford had posted with the court.
      The $500.00 check was maintained with Ms. Ford’s belongings in
      the jail until her release on December 28, 2012.
32.   Ms. Ford was represented at all times and had access to a list of
      bondsmen.
33.   John Targowski, a cooperating attorney with the American Civil
      Liberties Union, filed an appearance on behalf of Ms. Ford on
      December 28, 2012.
34.   Mr. Targowski filed an emergency application for leave to appeal
      and a petition for review of her bond in the Berrien County Trial
      Court, Circuit Division that same day.
35.   The appeal was assigned to Judge Charles LaSata, who was not
      available that day.
36.   The case was referred to Chief Judge Alfred Butzbaugh, who
      granted leave to appeal and revised the bond to the original
      $5,000/10%. No transcript or video recording exists of any
      proceeding before Judge Butzbaugh.
37.   Ms. Ford was released on December 28, 2012.
38.   On December 28, 2012, Susan Akens, an Enforcement Officer in the
      Berrien County Trial Court collections office, sent Respondent an e-
      mail regarding her contact with Ms. Ford on several dates during
      2012 which reflected a negative impression, and attached notes that
      she maintained regarding those incidents.
                                                                              5

39.   Ms. Ford, through counsel, filed a motion to disqualify Respondent
      and a motion to stay proceedings in the Berrien County District
      Court on January 2, 2013.
40.   On January 3, 2013, Respondent sent a reply e-mail to Ms. Akens,
      instructing her to send her notes to the Berrien County Prosecuting
      Attorney’s office, as the notes could “show a pattern of
      contemptuous behavior” and advising her that the prosecuting
      attorney might want her to testify about Ms. Ford’s conduct.
41.   Ms. Akens sent the notes to the prosecuting attorney via e-mail, and
      copied Respondent on the message.
42.   The Berrien County Prosecutor declined to prosecute the contempt
      matter.
43.   On or about January 3, 2013, Respondent instructed Ms. Brohman to
      prepare a sworn statement regarding her contact with Ms. Ford on
      December 4, 2012, which Ms. Brohman did.
44.   Respondent also instructed Ms. Brohman to have all court clerks
      who had had any interaction with Ms. Ford on December 4, 2012
      prepare sworn statements about their contact with her.
45.   Court clerks Katie Pugh, Sarah Belter, Julie Lear, and Toni Hall
      prepared sworn statements pursuant to that directive.
46.   Respondent presided over a hearing           on   the   motion    for
      disqualification on January 8, 2013.
47.   At that hearing, Respondent did not disclose his communication with
      Ms. Brohman regarding his request for Ms. Brohman and the other
      court clerks to prepare sworn statements regarding their contact with
      Ms. Ford on December 4, 2012.
48.   Respondent also did not disclose his communication with Ms.
      Akens.
49.   Ms. Ford, through counsel, filed a motion to dismiss the contempt
      charge in the Niles Division of the Berrien County District Court on
      January 7, 2013.
50.   Respondent denied Ms. Ford’s motion for disqualification at the
      January 8, 2013, hearing, and referred it to the Berrien County Trial
      Court Chief Judge for review.
51.   Respondent suspended the remaining proceedings (including
      consideration of the motion for stay, motion to dismiss, and the
      contempt hearing) to allow for the Chief Judge’s review of the
      disqualification issue.
                                                                                      6

      52.    On January 11, 2013, Judge LaSata issued a decision on Ms. Ford’s
             appeal and motion to dismiss, dismissing the contempt charge
             without prejudice.
       The standards set forth in Brown are also being applied to the following Judicial
Tenure Commission legal conclusions, to which respondent stipulated and which we
adopt as our own:

      A.     Respondent violated the Michigan Code of Judicial Conduct, Canon
             3A(1), in that he did not faithfully execute the law and maintain his
             professional competence when he commenced indirect contempt
             proceedings based only on unsworn conversations with his staff; and
      B.     Respondent violated the Michigan Code of Judicial Conduct, Canon
             3A(4), in that he received communications regarding Ms. Ford’s
             conduct from court staff, after the commencement of proceedings,
             and directed staff to provide the information to the prosecuting
             attorney and directed staff to prepare affidavits concerning the
             events of December 4, 2012 and did not advise Ms. Ford’s counsel
             of these communications.
The Commission also concludes, and we agree, that Respondent’s conduct constitutes:

      C.     Misconduct in office, as defined by the Michigan Constitution of
             1963, as amended, Article 6, § 30, and MCR 9.105;
      D.     Conduct clearly prejudicial to the administration of justice, as
             defined by Const 1963, art 6, § 30, and MCR 9.105;
      E.     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 the Code of Judicial
             Conduct, Canon 1;
                                                                                                                7


      F.       Irresponsible or improper conduct that erodes public confidence in
               the judiciary, in violation of the Code of Judicial Conduct, Canon
               2A;
      G.       Conduct involving impropriety and the appearance of impropriety, in
               violation of the Code of Judicial Conduct, Canon 2A;
      H.       Failure 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 the Code of Judicial Conduct, Canon 2B;
               and
      I.       Conduct that exposes the legal profession or the courts to obloquy,
               contempt, censure, or reproach, in violation of MCR 9.104(A)(2).
       After review of the Judicial Tenure Commission’s decision and recommendation,
the settlement agreement, the standards set forth in Brown, and the above findings and
conclusions, we ORDER that the Honorable Dennis M. Wiley be publicly censured. This
order stands as our public censure.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          March 26, 2014
       s0319
                                                                              Clerk
