July 2009

Steven Servaas, a 64 year-old Michigan state court judge, was publicly censured by a divided Michigan Supreme Court for misconduct that the Court described as an “aberration” in the face of 35 years of unblemished service on the bench. The outcome of the 4-3 decision was that, while a Court majority believed that Servaas acted inappropriately by making sexual comments to a woman court employee and had doodled pictures of male genitalia and female breasts on notes attached to court files, his actions were not so egregious as to warrant his removal from the bench.

The Judicial Tenure Commission (JTC) earlier recommended that Servaas be removed from office. Three Michigan Supreme Court Justices decided, however, that Servaas’ crude artistry and offensive comments were the only wrongful aspects of his conduct that could be reviewed by the state high court. Three other Justices took the view that, in addition to the offensive behavior, he had vacated his office. The Chief Justice decided the matter by voting with the bloc that believed that Servaas had in engaged in offensive acts, but that the Court could not review the removal argument for jurisdictional reasons.

The JTC believed that Servaas vacated his judicial office under Article 6, § 20 of the 1963 Michigan Constitution because, “Whenever a justice or judge removes his domicile beyond the limits of the territory from which he was elected or appointed, he shall have vacated his office.” At a hearing before a special master, the judge acknowledged that he was elected to serve in the first division of the 63rd District, and that he began to reside in the second division of the 63rd District in 2005; he moved back to the first division in 2008. The judge contended that he was only required to live within the district where his court sits, and not within a particular division. Servaas argued that, even if he was wrong, his interpretation of the law was reasonable, especially given the lack of legal precedent. The crux of the JTC complaint was the residency issue. The regulatory authority, however, charged him with conduct offenses. The JTC alleged that the judge acted in ways that demeaned female staff. As for the sexual harassment, Servaas claims he was at an after work party with female court employees, one of whom was wearing a University of Michigan sweatshirt. He says she teased him with the words "Go Blue," knowing Servaas is a Michigan State fan. The judge acknowledged that he responded something on the order of “You either gotta get a bigger chest or go to Alma (College).” Servaas dismissed the comment as "my weak attempt at humor." After learning through another employee that the woman was offended, he left an apology on her answering machine, he said. "I never heard another thing" about it until the incident showed up in the JTC complaint. The doodles were also, according to the Judge, ill-advised attempts at humor.  The JTC was concerned that the judge “lied under oath on multiple occasions before and during these proceedings in an effort to conceal his misconduct and the circumstances regarding the location of his residence beyond the geographic limits of the territory from which he was elected.” The judge argued that the JTC denied him procedural due process based on the misconduct of the JTC Executive Director, Paul Fischer.

After it was filed, the disciplinary charges resulted in a media storm in Michigan. The controversy, including the facts surrounding a meeting between the judge and the Fischer prior to the filing of charges, became the subject of numerous newspaper articles, editorials and letters to the editor. The story had it all: sexual peccadillos, allegations of abuse of power by the JTC, and a high court acting in seeming disarray.

It so happened that Fischer personally served Servaas on January 16, 2008, with a statutorily required notice, 28 days prior to the filing of the complaint, to afford the judge the opportunity to apprise the JTC in writing of matters of his choice, including information about the factual aspects of the allegations and other relevant issues. Fischer did so in melodramatic fashion. He arrived unannounced at Servaas’ chambers accompanied by an armed Michigan State Police lieutenant. The lieutenant, unbeknownst to either of the main participants in that encounter, recorded the conversation. The conversation can be heard at: http://www.mlive.com/news/grand-rapids/index.ssf/2009/11/attorney_who_investigated_judg.html.

In addition to the notice, Fischer presented Servaas with a petition for interim suspension without pay which the director indicated would be immediately filed and most likely granted because Servaas was “not in office.” Fischer then offered the judge the “opportunity to resolve” the matter quickly without any “shame, proceedings, [or] accusations of perjury” by resigning “immediately.” Fischer then handed Servaas a resignation letter on the judge’s own stationery. Servaas told Fischer that he needed “time to talk to somebody.” Fischer answered that Servaas would be “suspended in a matter of days” and that the matter would become public at a time when Servaas was “up for election.”  Fischer gave the judge a 9:00 a.m. next-day deadline and told him that he should be thrown off the bench for his sexually inappropriate behavior in and of itself. Fischer wouldn’t answer Servaas’ questions about the nature of the sexual allegations against him. At some point, Fischer told the judge, “You have to worry about it if you choose to fight it the soon-to-be filed charges). If you choose to resign, that's the end of it. Our file gets closed and that's the end. Nobody will know that I was here. You just decided to resign.” When Servaas refused to sign the resignation letter, the meeting ended. The Supreme Court majority wrote that, “When these proceedings commenced, the director’s threats to humiliate respondent and drag his name through the mud were soon realized. The details of the present allegations were widely disseminated in the local newspapers, on television and on the Internet over the course of several months.”

The Supreme Court majority ruled that it did not need to address the vacancy issue because case law, statutes and court rules provided for the filing of a quo warranto action by the Attorney General in the Court of Appeals. The Court stated that the Court could certainly, on appeal, review any decision entered by the Court of Appeals in a quo warranto action, but the majority ruled that an original proceeding in the Supreme Court was not the appropriate forum to determine in the first instance whether Servaas vacated office. All evidence and testimony obtained by the JTC regarding the vacation issue was the fruit of an unconstitutional process, since the JTC had no constitutional authority to proceed on the issue. The JTC could only act on the vacation issue if the quo warranto action had been successful or if the decision was affirmed by the Supreme Court if appealed. “Simply put, the JTC had the cart before the horse.”

Court disunity also centered on the perception of Servaas’ veracity. A majority agreed with Servaas’ counsel that the judge sincerely believed that he was properly residing in his district and saw no problem with living outside of the first division as long as he was not running for re-election. Servaas had seven residences at the time of the proceedings, including homes in both the first and second divisions. He rented a home in the first division. He said his hobby was renovating homes and often slept in the second division home when he was too tired to drive back to his first division residence. The majority saw his failure to change his address on official forms as oversights based on the judge’s belief that the address was unimportant since residency in the first or second division fulfilled his residency requirement to sit on the bench in the 63rd district as long he wasn’t running for re-election. When Fischer confronted Servaas in their controversial meeting (an “ambush” in the eyes of several Justices), “You’re not living in your district,” Servaas emphatically replied, “I am too.” The dissent regarded all of the judge’s assertions as a continuing deception which violated the law and was a breach of faith with the voters of the first division constituting judicial misconduct. The majority saw Servaas’ confusion and lack of recollection in his testimony about a series of telephone numbers and specific dates and times from ten years ago to be understandable. The dissent viewed the testimony as part of his pattern of behavior, demonstrating a “lack of candor and honesty.”

Two justices called for the Court to "open an administrative file to investigate the events and actions of the JTC and/or others responsible leading up to the recommendation of this case to the Court." One dissenter, however, did not think that the director’s tactics were relevant. To reason otherwise, was tantamount to adopting some variant of the “exclusionary rule” to judicial discipline and “[h]ere, there is no claim that the examiner obtained any evidence in this case by unlawful means.” One dissenting justice offered that, while Servaas advanced a compelling argument that his due process rights were violated by the director’s actions, the JTC’s decision was merely a recommendation to the Court and the ultimate disciplinary decision was rendered by the Court after a de novo review.

The full court found that the judge’s lewd comments and crass drawings to be inappropriate but isolated behavior meriting only a public censure.

The case is In re Honorable Steven R. Servaas , No. 137633 (Michigan, July 31, 2009).

As an aside, in July 2008, several; prominent Grand Rapids attorneys filed a grievance with the Attorney Grievance Commission against Fischer, alleging that he tried to extort Servaas. The Michigan Lawyer has now reported that the Attorney Grievance Commission, in late November 2009, ruled that Fischer did not have to face a lawyer disciplinary panel for his conduct in dealing with Servaas.

RICHARD S. THOMAS, Counsel, Illinois ARDC &
JAMES J. GROGAN, DACC, Illinois ARDC