In Re Servaas

The Judicial Tenure Commission (JTC) recommended that this Court remove 63rd District Court Judge Steven Servaas (respondent) from office for vacating his judicial office, as well as for judicial misconduct involving a comment and two drawings of a sexual nature. Because we conclude that the only appropriate forum to determine whether respondent vacated his judicial office is a quo warranto action filed by the Attorney General in the Court of Appeals, we reject the JTC’s recommendation as to the vacation of office claim. Respondent’s conduct concerning the comment and two drawings was unquestionably inappropriate; however, a majority of this Court concludes that respondent’s conduct did not rise to the level of blatant judicial misconduct requiring the most severe sanction: removal from office. In this respect, we view respondent’s actions as an aberration given his 35 years of apparently unblemished service as judge of the 63rd District Court. Accordingly we impose public censure only.

i

Respondent is a judge of the 63rd District Court, 1st Division, in Rockford, Michigan. On February 14, 2008, the JTC filed Formal Complaint No. 84,1 alleging that respondent had committed judicial misconduct in violation of Const 1963, art 6, *638§ 20;2 MCR 9.1043 and MCR 9.205;4 and the Michigan Code of Judicial Conduct (MCJC), Canons l,5 *6392(A) through (C),6 and 3A(3).7

Specifically, the first count of the complaint alleged that respondent vacated his judicial office in violation of Const 1963, art 6, § 208 when he changed his primary residence from Cannon Township, which is located in the 1st Division of the 63rd District Court, to Ada Township, which is located in the 2nd Division of the same judicial district.9 The second count of the corn-*640plaint alleged that respondent failed to comply with statutory notification requirements when he failed to change his driver’s license information and voter registration to reflect his move to Ada Township.

The third count of the complaint alleged that respondent engaged in sexually inappropriate conduct directed toward female court employees, citing three specific examples. In the first instance, it was alleged that respondent drew female breasts on a note that was attached to a court file. The drawing was made after a female clerk commented on the revealing dress of a woman who appeared in court. The second event concerned the drawing of a penis that appeared on a note attached to a court file. The third instance occurred during a retirement party for an employee at the 2nd Division courthouse. While at the party, respondent commented on a university sweatshirt worn by a female *641clerk employed in the 2nd Division. Respondent stated that the woman had “an awfully small chest” for the college indicated on the sweatshirt and “should have gone to a smaller school like Alma,” which would have fit her “small chest better.”

On March 5, 2008, this Court appointed the Honorable Casper O. Grathwohl as master to hear the case. The master’s report, issued on May 12, 2008, concluded that respondent vacated his judicial office in violation of Const 1963, art 6, § 20 when he changed his principal residence from the 1st Division to the 2nd Division of the 63rd District Court in August 2005. The master recommended that the second count of the complaint be dismissed.10 The master further concluded that respondent’s “sexual doodles and sexual communication” constituted judicial misconduct and compromised the integrity of the court.

Respondent filed objections to the master’s report. The JTC issued its decision and recommendation for an order of discipline on October 17, 2008. The JTC adopted the master’s findings of fact and conclusions of law, with the exception of finding that respondent had moved to the 2nd Division “as early” as 2000. In making this factual finding, the JTC relied on documentary evidence that was offered solely for impeachment purposes in the proceedings before the master, but was not substantively admitted.11 On the basis of the findings of *642fact and conclusions of law, the JTC recommended that respondent be removed from office. The JTC further recommended that respondent be assessed fees and costs in the amount of $8,364.38 because respondent “engaged in deceit and intentional misrepresentation.”

ii

This Court reviews the recommendations and findings of the JTC de novo.12 The standard of proof in judicial disciplinary proceedings is a preponderance of the evidence.13

A. VACATION OF OFFICE

Const 1963, art 6, § 20, provides that “[wjhenever 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.” The parties agree that the term “domicile” refers to respondent’s primary residence. Furthermore, respondent admits that he changed his primary residence to the second election division from 2005 to 2008.14 The dispute centers on the meaning of the word “territory.” Respondent argues that “territory” refers to the entire 63rd Judicial District, while the JTC argues that the term is limited to the election division within the district. Thus, when respondent moved his primary residence from the first election division to the second election division of the 63rd District Court, the JTC maintains that respondent *643vacated his office, possessed no authority to continue to serve as a judge, and functioned as a “nonjudge masquerading as a judge.”

However, this Court need not address which argument is correct, nor reach a conclusion regarding whether respondent vacated his office because our statutes, caselaw, and court rules provide that a quo warranto action brought by the Attorney General in the Court of Appeals is the only appropriate and exclusive proceeding to make the preliminary determination regarding whether respondent vacated or unlawfully held his judicial office.15

MCL 600.4501 provides that the Attorney General shall bring an action for quo warranto “when the facts clearly warrant the bringing of the action.”16 MCR 3.306(A)(1) provides that the quo warranto action must *644be brought in the Court of Appeals when a person “usurps, intrudes into, or unlawfully holds or exercises a state office” or if a state officer “does or suffers an act that by law works a forfeiture of the office.” If a quo warranto action claims usurpation of office, the judgment “may determine the right of the defendant to hold the office.”17 Moreover, if a defendant in a quo warranto proceeding is found to unlawfully hold or exercise the office at issue, the defendant may be assessed fines18 and damages19 in addition to being ousted from office. Significantly, our caselaw has held for more than a century that “[t]he only way to try titles to office finally and conclusively is by quo warranto. ”20

Notwithstanding, the JTC asks this Court to make the prefatory determination that respondent vacated his office under Const 1963, art 6, § 20, and that he consequently “was no longer a judge” and acted “without judicial authority,” as a basis of removing respondent from office for judicial misconduct. However, this determination is precisely the issue to be resolved in a quo warranto action. While this Court could certainly review on appeal the decision made by the Court of Appeals in a quo warranto action,21 and could determine *645whether the conduct surrounding respondent’s forfeiture of office rose to the level of judicial misconduct warranting judicial discipline,22 an original proceeding in the Supreme Court23 is not the appropriate place to determine in the first instance whether respondent vacated his office. Rather, the law requires that this question be initiated by the Attorney General and resolved as an initial matter by the Court of Appeals.24

Consequently, all evidence and testimony obtained during the proceeding by the JTC regarding whether respondent had vacated his office was obtained through an unconstitutional process because the JTC has no authority to proceed on the quo warranto issue or to determine whether respondent vacated his office. That determination can only be made by the Court of Appeals in a quo warranto proceeding, which could then be appealed to this Court. If a quo warranto action has been successfully brought in the Court of Appeals, and that decision is affirmed by this Court, only then may the JTC act on the appellate court decision and determine whether there has been any judicial misconduct associated with the determination of the Court of Appeals that a judge has vacated his or her office.

Moreover, had the Michigan Supreme Court decided in a quo warranto appeal that respondent had vacated *646his office, the Supreme Court would have had the power to remove respondent from office, and, had that happened, any JTC proceeding regarding judicial misconduct involving the vacation of office would have been moot because the Supreme Court had already exercised the most severe punishment. Simply put, the JTC had the cart before the horse.

Just as the JTC has neither the authority nor the power to decide whether a judge vacated his or her office, this Supreme Court does not have any constitutional authority to grant that authority and power to the JTC. The JTC only has the authority to let the quo warranto process lawfully proceed to a legal determination of whether or not a judge has vacated his or her office.

With regard to our conclusion in this regard, we reject Justice MARKMAN’s attempt to characterize the JTC as having made a “determination” to which this Court must defer. The JTC only has the authority to “recommend” disciplinary action. Justice MARKMAN’s attempt to couch our “rejection” as unbelievable is improper. Indeed, Justice MARKMAN asserts that a majority of this Court errs in its review of the JTC decision by “affording] no deference whatsoever to the commission’s factual findings.” Post at 655 (emphasis added). To be precise, while this Court has a duty to review a recommendation, as to the deference afforded the JTC after this Court reads the recommendation, there is no duty to accept, or to defer, to any part of the JTC’s recommendation. This Court has no duty to accept, even in part, any JTC “decision” because the JTC does not have the power to decide how and whether to discipline a judge; the JTC can only make recommendations to this Court and, in this regard, our review of *647JTC recommendations is de novo.25 In re Somers, 384 Mich 320, 323; 182 NW2d 341 (1971).

As established in Const 1963, art 6, § 30(2):

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 *648failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice.

For comparison purposes, consider this scenario: if the JTC believes a judge has committed armed robbery, it has no authority to proceed to determine whether or not the judge did commit armed robbery. Only the criminal judicial system guided by statutes and court rules has the authority to make that determination. If the court process legally determines a judge is guilty of armed robbery, only then can the JTC recognize the legally determined fact that the judge committed the crime and only then can the JTC bring a proceeding for judicial misconduct on the basis of the court’s ruling that a judge committed the crime of armed robbery.

B. CONDUCT OF THE EXECUTIVE DIRECTOR OF THE JTC

On January 16, 2008, the executive director of the JTC personally served respondent with a 28-day notice pursuant to MCR 9.207(D)(1).26 The executive director arrived unannounced at respondent’s chambers accompanied by an armed Michigan State Police lieutenant. Apparently, unbeknownst to either respondent or the director, the police officer recorded the conversation.

The director presented respondent with the 28-day notice, and asserted that respondent’s office was “vacant” because respondent had moved outside his district, as evidenced by his homestead tax exemption *649affidavit.27 In addition to the notice, respondent was also presented with a petition for interim suspension without pay, which the director indicated would be immediately filed and mostly likely granted because respondent was “not in office.”

The director then offered respondent the “opportunity to resolve” the matter quickly without any “shame, proceedings, [or] accusations of perjury” by resigning “immediately,”28 presenting respondent with a prepared resignation letter on respondent’s court letterhead. The director stated that, although the JTC indicated that respondent had until 9:00 a.m. the next morning to sign the resignation letter, the director would “prefer” to have the resignation letter signed “right now” so that he could “take the letter with” him.

When the respondent protested, seeking “time to talk to somebody,” the director replied that respondent would be “suspended in a matter of days” and that it would all “become public” at a time when respondent was “up for election.” The director reiterated the 9:00 a.m. deadline, adding that respondent also faced allegations involving the sexually inappropriate behavior, and the director would get respondent “thrown off [the bench] just for that.” When respondent asked questions regarding the basis of the allegations of sexually inappropriate behavior, the director replied that he was not there “to do any type of interview” and would not “explain anything else.”

The director told the respondent that he could “take the easy way out” and sign the resignation letter; otherwise, the director “welcome[d] the opportunity” *650and would “engage to the fullest” if respondent chose to “fight it.” When respondent observed that criminal defendants were given “more consideration” than was being afforded to him, the director responded that immediately signing the resignation letter would “avoid having to drag [respondent’s] name through the mud,” “avoid any embarrassing situations,” and avoid the “stain to the state judiciary” of having a judge who “violates the law, commits perjury, [and] sexually harasses staff.” After respondent refused to sign the resignation letter on the spot, the meeting concluded. A moment later, the director was heard saying that “it’s like shooting ducks in a barrel.”

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 controversy, including the facts surrounding the meeting between respondent and director, were the subject of numerous newspaper articles, editorials, and letters to the editor.29 While the actions of the JTC director have been called into question, this Court need not address whether he violated any ethical rules because the proper forum for the review of the JTC director’s actions is the Attorney Grievance Commission.

*651c. inappropriate drawings and comment

The remaining allegation of judicial misconduct concerns respondent’s sexually inappropriate conduct directed toward female court employees. The testimony indicates that on two separate occasions respondent made lewd drawings — one of female breasts and one of a penis — on notes that were attached to two court files. The testimony further indicates that respondent commented on the small chest size of a 2nd Division female employee during a retirement party at the 2nd Division courthouse. Notably, even respondent realized he had made a mistake because he called the employee the following day to apologize personally to her. Unfortunately, she would not return his calls, so he finally left a message on her voice mail apologizing for the gaffe.

Respondent’s counsel acknowledged that respondent’s conduct was “inappropriate,” but contended that it was spontaneous and represented “isolated” incidents from respondent’s nearly 37-year career. Respondent’s counsel argues that respondent’s conduct warrants, at most, a public reprimand. This argument is consistent with the recommendations of the JTC, which indicated that with respect to count 3, respondent’s sexually inappropriate conduct merited a public censure.

We agree with the JTC that respondent’s sexual conduct was crass and inappropriate; however, we do not agree that respondent’s conduct rises to the level of judicial misconduct beyond requiring public censure.

D. VERACITY OF RESPONDENT’S TESTIMONY

While Justice Markman appears to assert that whether or not the JTC had the authority to proceed, sanctions against respondent are appropriate given *652Justice MARKMAN’s conclusion that respondent lied under oath. Having reviewed the entire record closely, we do not agree with Justice MARKMAN’s conclusion that respondent lied under oath.30 On the contrary, we agree with respondent’s counsel that this is not a case of arrogance. Instead, it appears that respondent believed that he was still properly in his district and that there was no problem with living outside of the 1st Division.

At the time these proceedings occurred, respondent had seven residences. He owned homes in both the 1st and 2nd divisions of the 63rd District Court. He rented a home in the 1st Division, and he also owned homes in Whitefish Lake, Michigan; Ludington, Michigan; North Carolina; and Florida. Respondent testified that he renovates houses as a hobby, and that from 2000 to 2005, he often spent the night at one of the two houses he was renovating in the 2nd Division when he was too tired to drive back to his 1st Division residence.

*653Thus, during this five-year period, respondent testified that he went back and forth between the houses as necessary for the remodeling projects. Certainly he cannot be expected to have to subsequently provide facts establishing that he was residing in one house or two houses after so much time had passed and without being prompted by any particular reason to so do. Again, respondent’s actions in this regard support his perception that it didn’t matter whether he spent the night at the 1st Division house or the 2nd Division house, because he was still residing in the 63rd District.

Respondent admitted that from 2005 on, he resided in the 2nd Division home, and the record reflects that he did nothing to hide this fact. Indeed, respondent’s name, address, and telephone number for the 2nd Division home were listed in the local phone book.

Specifically during a meeting in approximately late March 2006 between respondent, the State Court Administrator, and the JTC executive director, the State Court Administrator, said to respondent, “You’re not living in your district.” In response, respondent said “I am too.” Importantly, we note that even though respondent was first accused of vacating his judicial office in early 2006, it appears that no assertion was made again until respondent was ambushed on January 16, 2008. Again, respondent did not try to deny the fact that he was living in the 2nd Division at that time, because he thought he could live in that division as long as he was not running for reelection.

Consequently, we do not conclude that respondent lied under oath. At times he seemed confused and could not remember a series of different telephone numbers (until he later refreshed his recollection), specific dates and times, and events that occurred nearly 10 years *654before he testified. In fairness, we cannot conclude that respondent intentionally lied under oath.

III. CONCLUSION

Because we conclude that the only appropriate forum to determine whether respondent vacated his judicial office was a quo warranto action filed by the Attorney General in the Court of Appeals, we reject the JTC’s recommendation with respect to the vacation of office claim. Because the JTC lacked legal authority to bypass submission of the quo warranto action by the Attorney General, the finding that respondent vacated his office is null and void. The powers held by the JTC simply do not include the power by the JTC to determine the existence of a vacancy in judicial office.

Finally, with respect to the claim against respondent for judicial misconduct involving a comment and two drawings of a sexual manner, while respondent’s conduct was unquestionably inappropriate, we believe, under the unique circumstances of this case that only public censure is required. Accordingly, this opinion stands as our public censure.

Pursuant to MCR 7.317(C)(3), we direct the Clerk of the Court to issue the judgment order immediately.