If you can't recall him, impeach him

traverse city Record-Eagle ^ | 1/20/03 | PATRICK SULLIVAN

[freepatriot32]

TRAVERSE CITY - At a copy shop recently, LaVern Broughton was busy making copies of a recall petition he had drafted when another customer noticed it and asked him what it was.

Broughton planned to circulate a petition in Grand Traverse, Antrim and Leelanau counties requesting an election to recall embattled District Judge Thomas Gilbert, he told the man.

"When he seen what it was, he wanted to sign it right away," Broughton said.

But Broughton's plan was destined to fail even before it had begun.

With a little more research, Broughton learned that judges - even though they are elected officials - cannot be recalled, according to Article II, Section 8 of the Michigan Constitution.

Broughton at first thought he would go ahead with the petition drive anyway as a symbolic way to protest Gilbert, who at the end of last year took a nearly six-week leave for treatment for alcohol abuse after it came to light that he had puffed on a marijuana cigarette at a Rolling Stones concert.

But Broughton, who had planned to fund the drive himself, instead settled on a different course of action. He plans to petition state representatives and the governor to have Gilbert impeached.

Michigan law allows three avenues for the removal of a judge - in a regularly scheduled election, through impeachment, which requires the approval of the governor after two thirds of the state house and senate have voted to support it, or at the hands of the Michigan Judicial Tenure Commission.

The process is such so that judges will not become slave to the political whim of the people at the expense of the law, said David Moran, an assistant professor at Wayne State Law School.

"I can't speak for the drafters of the Michigan Constitution," Moran said. "I would assume that ... the drafters of the constitution wanted to insulate the judiciary from the intense public pressure that can arise when a judge makes an unpopular decision."

Sometimes, he said, judges make "legally correct but unpopular" decisions.

When a judge prompts rancor from citizens not over a legal decision but because of misconduct, the Michigan Constitution calls on the Judicial Tenure Commission to determine whether action, such as removing the judge from office, is necessary.

Peter Henning, a legal ethics professor at Wayne State University, said the judicial tenure commission moves slowly, especially compared to misdemeanor cases in district court.

While a misdemeanor case likely would be over in a month or two, a complaint against a judge is likely to take more than a year, he said.

"It's much slower than a local criminal court, certainly," Henning said. "It's a different process because it involves someone's livelihood."

Another reason the commission moves so slowly, he said, is because the tenure commission's members are not full time; they are judges from different courts around the state.

And if the tenure commission decides to do nothing, or to admonish Gilbert privately, the public may never hear about it.

"If there's a decision not to do anything, they can dismiss a complaint and never announce it," he said. "There could be a private letter sent and you wouldn't hear about it."

It's difficult to predict what could happen to Gilbert because there is so little precedent, Henning said. But a recent case that came before the tenure commission may indicate that Gilbert's job is safe.

A district judge in Macomb County assigned court-appointed cases to her lover without disclosing their relationship. The man was later convicted of murdering his wife.

In that case, the judge was suspended and she was allowed to return to the bench.

"I doubt he would lose his position," Henning said. "I can see them admonishing him certainly."

An admonishment, which would consist of a letter, could happen publicly or privately.

Henning predicted that because the Gilbert case is so well-known, the tenure commission would do something publicly, because it is interested in preserving public respect for the judiciary.

Meanwhile, Broughton, who is no stranger to launching recall campaigns against government officials, remains committed to removing Gilbert from office.

He also admits he is somewhat biased against the former Traverse City commissioner, however. "When he was a city commissioner, he treated people very rudely at times and I was one of the ones who got treated rudely," Broughton said.

Patrick Sullivan is the reporter for crime, courts and public safety. He can be reached at (231) 933-1478, or at psullivan@record-eagle.com

[freepatriot32]

ok so he takes a couple of hiyts off a joint at a rock concert so he needs alcohol rehab? am i missing somthing here ?

also if i test positive for marijuana at my job i would be fired why should it be any different for a judge that sentences people to jail for smoking marijuana ?