Petition for Writ of Certiorari — Ferrara v. Michigan Judicial Tenure Commission

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OhFpot Gi ;

In The

Supreme Court of the United States

October Term, 1998

HON. ANDREA J. FERRARA,

Petitioner,

VS.

MICHIGAN JUDICIAL TENURE COMMISSION,

Respondent.

On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Michigan

PETITION FOR WRIT OF CERTIORARI

BenpureE & THOMAS

Mark R. Benpure (P23490)

Counsel of Record

577 East Larned, Suite 210

Detroit, Michigan 48226-4392

(313) 961-1525

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

II.

Il.

QUESTIONS PRESENTED

WHETHER THE SUPREMACY CLAUSE OF THE

UNITED STATES CONSTITUTION, ART. VI, § 2,

PERMITS A STATE TO REFUSE TO APPLY TITLE III

OF THE OMNIBUS CRIME CONTROL AND SAFE

STREETS ACT OF 1967, 18 U.S.C. § 2510 ET SEQ., IN

JUDICIAL TENURE PROCEEDINGS: BY PRECLUD-

ING AN EVIDENTIARY HEARING SOUGHT

UNDER 18 U.S.C. § 2518(10)(a); BY REFUSING TO

APPLY 18 U.S.C. § 2515, WHICH BARS THE USE OF

EVIDENCE OBTAINED IN VIOLATION OF THE

ACT AND EVIDENCE DERIVED THEREFROM;

AND BY PUNISHING FOR CONTEMPT A WIT-

NESS’S INVOCATION OF THE FEDERAL STATUTE

AND GELBARD v. UNITED STATES, 408 U.S. 41

(1972) IN DECLINING TO ANSWER A QUESTION

BASED ON A TAPE WHOSE LEGALITY WAS

CHALLENGED BUT UNDECIDED.

WHETHER, CONSISTENT WITH THE SUPREM-

ACY CLAUSE AND THE FIRST AND FOUR-

TEENTH AMENDMENTS TO THE CONSTITUTION

OF THE UNITED STATES, A STATE JUDICIAL

TENURE COMMISSION MAY BASE JUDICIAL

REMOVAL PROCEEDINGS ON THE USE OF

RACIAL EPITHETS IN PRIVATE CONVERSA-

TIONS, INCLUDING COMMENTS ABOUT PUBLIC

OFFICIALS, WITHOUT AFFORDING THE

ACCUSED AN OPPORTUNITY TO SEEK DISs-

MISSAL ON FIRST AMENDMENT GROUNDS.

WHETHER THE DUE PROCESS GUARANTEES OF

THE FOURTEENTH AMENDMENT OF THE CON-

STITUTION OF THE UNITED STATES ARE SATIS-

FIED BY STATE JUDICIAL TENURE COMMISSION

PROCEDURES WHICH CENY THE ACCUSED THE

QUESTIONS PRESENTED - Continued

OPPORTUNITY TO PRESENT EVIDENCE

REGARDING TAPES WHICH ARE THE SOURCE

OF THE MISCONDUCT FINDINGS; WHICH

ADOPT A NOVEL EX POST FACTO CONSTRUC-

TION OF “OBSTRUCTION OF JUSTICE” AND

“FRAUD ON THE COURT” TO DISCIPLINE PETI-

TIONER FOR CONDUCT WHICH WAS NEITHER

UNDER THE LAW EXISTING AT THE TIME OF

THE CONDUCT; WHICH PERMIT CHARGING AN

ACCUSED AFTER THE FACT FOR PRIOR TESTI-

MONY PRESENTED TO REFUTE THE ORIGINAL

CHARGE; AND WHICH PERMIT THE STATE TO

DISCIPLINE A JUDGE FOR CONDUCT WHICH

WAS NEVER CHARGED OR LITIGATED.

PARTIES TO PROCEEDINGS

In the general election of November, 1992, Petitioner

ANDREA J. FERARA was elected to serve as a Judge of

the Michigan Circuit Court for the 3rd Judicial Circuit.

That Court, serving Wayne County, Michigan, is the State

trial court of general jurisdiction. Respondent was re-

elected in the November, 1994 election. She remained a

circuit court judge until removed through the Judicial

Tenure Commission proceedings which are the focus of

this Petition.

Respondent MICHIGAN JUDICIAL TENURE COM-

MISSION is the agency which initiates, then reviews,

charges of judicial misconduct against a sitting judge. The

Commission appoints an Executive Director (also known

as the “Examiner”) who serves as prosecutor. The charges

are initially heard before a Master appointed by the Mich-

igan Supreme Court. The Master’s report is then

reviewed by the Judicial Tenure Commission, whose rec-

ommendation, in turn, is reviewed by the Michigan

Supreme Court. The Judicial Tenure Commission pros-

ecuted the charges brought against Petitioner.

TABLE OF CONTENTS

Page

QUESTIONS OM vinaeiain ys i

PARTIES TO THE dit ce ong EE ii

TABLE OF Hite scien al OTT vi

OPINIONS AND CER LOW. 1

SUPREME COURT PRETO 2

STATUTES AND CONSTITUTIONAL PROVISIONS

ee eC isirieta ee 3

STATEMENT OF Snel ican ETE or 6

THE REASONS WHY CERTIORARI SHOULD BE

MONET nate ee 16

UO) Overview. 6.24. Sth eb Rsavae case ss 16

(2) The Question Whether Title II] Applies To

State Judicial Tenure Commission Proceedings

Presents A Substantial Constitutional Issue.. 18

(3) The Question Whether A State Can Impose

Sations Is A Substantia] Constitutiona] Issue.. 22

(4) The Question Whether Michigan Judicial Ten-

ure Procedures Comport With Due Process

Requirements Under The Fourteenth Amend-

On Pe Ae os 24

a. The Use Of Evidence In A Fashion That

Precludes The Accused From Offering Evi-

WE ck sen tcneotventue ot 24

b. The Fx Post Facto Re-Definition Of

“Obstruction Of Justice” And “Fraud on

the Court” To Justify Removing Petitioner

For The Avela ei... 26

TABLE OF CONTENTS - Continued

Page

The “Trial First - Charge Later” Feature Of

Michigan Procedure

Removing Petitioner For Conduct Not

Alleged To Be Misconduct In Any Com-

plaint

TABLE OF AUTHORITIES

———- Te

Page

Cases

Banner v. Banner, 45 Mich. App. 148, 206 N.W.2d

ZOE CIGTS) x sinvicdstavnss8 adv estinaekee te eys 27

Baum v. Baum, 20 Mich. App. 68, 173 N.W.2d 744

(RPE oaas iv casbes cvedaca canada eav is careeeeversites 27

Bouie v. Columbia, 378 U.S. 347 (1964) ............... 28

Bowman Transportation, Inc. v. Arkansas Best Freight

System, Inc., 419 US. 281 (1974) 2. cee i ccvcce veces 25

Brandenburg v. Ohio, 395 U.S. 444 (1969)............. 22

Burnham v. Kelley, 299 Mich. 452, 300 N.W. 127

CRDGS Eo vac dacs beens cure deuce oe ERODE Vee ewes es ees 27

Chambers v. Mississippi, 410 U.S. 284 (1973).......... 25

Chandler v. United States Army, 125 F.3d 1296 (9th

Cie SOUP is c5s5s sr kenh0a% aka s Ore eee 10, 21

Choplinsky v. New Hampshire, 315 U.S. 568 (1942) .... 22

Cohen v. California, 403 U.S. 15 (1979) ............ tae

Collins v. Smith, 578 F.2d 1197 (7th Cir. 1978)........ 23

Committee on Professional Ethics and Conduct v.

Wenger, 454 N.W.2d 367 (lowa, 1990) ............. 29

DeHaan v. DeHaan, 348 Mich. 199, 82 N.W.2d 432

Bs Ce ee ee perry eed Paneer Sehr e RE 27

Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975) .... 22

Ferguson v. Georgia, 365 U.S. 570 (1961).............. 25

Free: wv. Bland, 369. UiS. GOS CiSG2). so occ os base wniceaws 20

Gelbard v. United States, 406 U.S. 41 (1972) ...... passim

ica

Vii

TABLE OF AUTHORITIES - Continued

Page

Great Northern Arco v. Sunburst Oil & Refining Co.,

OFF SO SES 25s bs ek 16

Hamm v. Rock Hill, 397 U.S. 306 RRO awd sdk bakes 20

Herndon v. Georgia, 295 U.S. 441 CRU ote g ee ye 16

In re Grand Jury, 111 F.3d 1060 (3rd Cir. SOrF hs rs e e

Jenkins v. McKeithen, 395 U.S. 411 |, EE ceee 25

Marks v. United States, 430 U.S. 188 fog 2 SOPs 28

Milkovich v. Lorain Journal Co., 497 US. ] $b ow 23

Missouri v. Gehner, 281 U.S. 313 is SARS paren 16

Nash v. Florida Industrial Commission, 389 U.S. 235

ROWED oxic tay Un WRU SES eS ETN CO we ee 20

Office of Disciplinary Counsel v. Simecek, 699 N.E.2d

Pe OD oi ons ee 29

People v. Thomas, 438 Mich. 448, 475 N.W.2d 288

RS x shy Sakae eee cas ei a ee 26

Perez v. Campbell, 402 U.S. 637 (1971)................ 20

Rabe v. Washington, 405 U.S. 313 ty ( REERReeenae ce 28, 29

Re Ruffalo, 390 U.S. 544 SU 6 Ohare a daGcS ce 28, 29

Roth v. United States, 354 U.S. 476 SAUNT 8 ka ce ReR Sas 22

Schware v. Board of Bar Examiners, 353 U.S. 232

ote ad Ee EE Oe PEELS OT pl te RE ee ST 23, 24

State Bar v. Corace, 390 Mich. 419, 213 N.W.2d 124

GePPED csi venus wedi knauiuce eaiiu ieee Soe 29

Vili

TABLE OF AUTHORITIES - Continued

Page

State Bar v. Fried, 388 Mich. 711, 202 N.W.2d 692

DOVES i 0s din ss pe senekuaseyeue ee 29

State Bar v. Jackson, 390 Mich. 147, 211 N.W.2d 38

UIPFOR 69> $56 isu sss 056A Pi 29

United States v. Cantu, 625 F.Supp. 656 (N.D. Fla.,

stg ERE RE Ee TOL Fa ca PE RU 19

United States v. Losing, 539 F.2d 1174 (8th Cir. 1976) .... 19

United States v. Manuszak, 438 F.Supp. 613 (E.D.

Es PIE nurses nse karti 19

United States v. Murdock, 63 F.3d 1391 (6th Cir.

ool EE EE FOE OS Na SIS Tig SOR 10

United States v. Nixon, 418 U.S. 683 2s | Re ee 25

United States v. Vest, 813 F.2d 477 (1st Cir. 1987)....10, 21

Willner v. Committee on Character and Fitness, 373

Moothe PUP ROE 65 505s ae naked ees a 24

Young v. Young, 342 Mich. 505, 70 N.W.2d 730

ca SOE ee Eee i tet Mc Peg NO nae 27

STATUTES, Court RULES AND OTHER AUTHORITIES

Abramson, Canon 2 of the Code of Judicial Conduct,

‘9 Waar. L. Hew, 90 (9906). 11

Blackstone, Commentaries, 161-177 LE he kiencciue 26

Tele MII isco ie nd Le passim

Fourteenth Amendment... os ook oooocc oc ck passim

Datei

PRN TMU a et his tela ae Adan Odie” bas

Vin Me hina tie abt

Sheet ves whet,’

TABLE OF AUTHORITIES - Continued

Page

tis Satis tatnins on CCP ET 19

ee ME ie fosiece tah 17

Oe A ee TO sso a ee passim

We nteis MA MOND, GP ss oi ise ec 22

stdebins ot ick cng oy ok PEE 11

MT MOC BONE vibe eek Ci a passim

18 U.S.C. § 2511(1)(a), (b), and ot RESET passim

We es BEAN es os isi ee 4

OO Mins BOOP ia ds nse oo eine. passim

AW Mites BE AEA: Soic ion ie 9

Oe Maes BR er Sai Fi ee 16

OPINIONS AND ORDERS BELOW

Petitioner filed a pre-trial motion to dismiss, con-

tending that the statements attributed to her in the For-

mal Complaint are protected by the First Amendment,

and were obtained in violation of 18 U.S.C. § 2510 et seq.

Those arguments were rejected, as was Petitioner’s

request for an evidentiary hearing. The oral ruling and

Order (A1-A4) are not reported.

Petitioner filed a formal motion seeking an evidenti-

ary hearing. That motion was also denied by oral ruling

and Order (A8-A13), neither of which is reported.

Petitioner filed a motion for superintending control,

asking the Michigan Supreme Court to review the Mas-

ter’s refusal to consider the First Amendment issues on

the merits and her refusal to allow an evidentiary hear-

ing. The Michigan Supreme Court denied the motion for

superintending control (A14). That Order is not pub-

lished.

Before the trial began, the Master ruled that

Petitioner had a standing objection, based on 18 U.S.C.

§ 2510, et seq., to the admission of the tapes and

evidence derived therefrom (A15). That decision is also

unpublished.

During the trial, the Master admitted the tapes, rul-

ing that 18 U.S.C. § 2515 does not apply to Michigan

Judicial Tenure-Commission proceedings, at least not

when the tapes have been voluntarily provided to the

Government! (A16-A32). That ruling is not reported

During the trial, Petitioner was called to testify by

the Examiner. He played a portion of a tape, asking

Petitioner about its content. Petitioner respectfully

' In her Report, the Master found that the tapes had been

produced by Mr. Tarjeft without government compulsion. In

fact, Tarjeft filed a written objection to the seizure. After the

Master’s ruling was made, the Examiner admitted that the tapes

had been obtained by the compulsion of subpoena, and the

Judicial Tenure Commission so found.

declined to answer, citing her rights under 18 U.S.C.

§ 2515 and Gelbard v. United States, 408 U.S. 41 (1972). By

unpublished oral opinion and Order, the Master found

Petitioner in contempt and barred her from presenting

any evidence about the tapes (A33-A40).

The Master issued her Report and, on review, the

Judicial Tenure Commission issued its Report and Recom-

mendation (A70-A74). Neither opinion is reported.

This recommendation was appealed to the Michigan

Supreme Court, the State’s court of last resort. Its Opin-

ion removing Petitioner from judicial office is reported as

In re Ferrara, 458 Mich. 350; _. N.W.2d __ (1998).

Petitioner filed a Motion for Rehearing, contending,

inter alia, that it was constitutionally impermissible to

discipline Petitioner for conduct never charged against

her, and to adopt a definition of “obstruction of justice”

to punish Petitioner for conduct which did not constitute

“obstruction of justice” at the time. The Michigan

Supreme Court denied the Motion for Rehearing in a

published Order, In re Ferrara, 459 Mich. 1205; __. N.W.2d

=. (1998).

SUPREME COURT JURISDICTION

The published decision of the Michigan Supreme

Court was issued on July 28, 1998. Petitioner sought

rehearing within the applicable 21 day period of M.C.R.

7.305(D)(1).2 The Court docketed the Motion for Rehear-

ing and issued its Order denying the Motion for Rehear-

ing on October 7, 1998. Petitioner invokes the certiorari

jurisdiction conferred on this Court by 28 U.S.C.

§ 1257(a), which provides:

2 Respondent argued in the State Court that a different rule, -

permitting a rehearing petition within 14 days, was the

controlling time limit. On that basis, Respondent sought to

dismiss the Rehearing Motion. The State Court rejected

Respondent’s proposed construction of the Michigan Court

Rules by granting Petitioner’s Motion To Docket.

Pe — itl tie aa

“Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court by writ of certiorari where the validity of

a treaty or statute of the United States is drawn

in question or where the validity of a statute of

any State is drawn in question on the ground of

its being repugnant to the Constitution, treaties,

or laws of the United States, or where any title,

right, privilege, or immunity is specially set up

or claimed under the Constitution or the treaties

or statutes of, or any commission held or

authority exercised under, the United States.”

This Petition, filed within 90 days of the Michigan

Supreme Court Order denying rehearing, is timely under

this Court’s Rule 13.3.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Petitioner relies on Title II] of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C.

§§ 2510-2520. 18 U.S.C. § 2511(1)(a), (b), and (c) make

criminal the interception of, or use of a device to inter-

cept, any wire, oral, or electronic communication, as well

as the use or disclosure of any such communication with

reason to know it was unlawfully obtained:

§ 2511. Interception and disclosure of wire,

oral, or electronic communications prohibited

(1) Except as otherwise specifically provided

in this chapter any person who

(a) intentionally intercepts, endeavors to

intercept, or procures any other person to

intercept or endeavor to intercept, any wire,

oral, or electronic communication;

* * *

disclose, to any other person the contents of

any wire, oral or electronic communication,

knowing or having reason to know that the

information was obtained through the inter-

ception of a wire, oral, or electronic commu-

nication in violation of this subsection; or

(d) intentionally uses, or endeavors to use,

the contents of any wire, oral, or electronic

communication, knowing or having reason

to know that the information was obtained

through the interception of a wire, oral, or

electronic communication in violation of

this subsection; shall be punished as pro-

vided in subsection (4) or shall be subject to

suit as provided in subsection (5).”

[18 U.S.C. § 2511(1)(a), (c), and (d)]

Section 2511(2)(d) permits participant interception

generally, but not if the interception is for criminal or

tortious purposes:

“It shall not be unlawful under this chapter for a

person not acting under color of law to intercept

a wire, oral, or electronic communication where

such person is a party to the communication or

where one of the parties to the communication

has given prior consent to such interception

unless such communication is intercepted for

the purpose of committing any criminal or tor-

tious act in violation of the Constitution or law

of the United States or of any State.”

[18 U.S.C. § 2511(2)(d)]

Section 2515 is a statutory exclusionary provision

which bars the use of the contents of any unlawfully

intercepted communication and evidence derived there- .

from:

“Whenever any wire or oral communication has

been intercepted, no part of the contents of such

communication and no evidence derived there-

from may be received in evidence in any trial,

hearing, or other proceeding in or before any court,

grand jury, department, officer, agency, regulatory

body, legislative committee, or other authority of

the United States, a State, or a political subdivision

thereof if the disclosure of that information would

be in violation of this chapter.”

[18 U.S.C. § 2515]

Section 2518(10)(a) addresses the procedure for mov-

ing to suppress evidence obtained in violation of Title III:

“Any aggrieved person in any trial, hearing, or

proceeding in or before any court, department,

officer, agency, regulatory body, or other author-

ity of the United States, a State, or a political

subdivision thereof, may move to suppress the

contents of any wire or oral communication

intercepted pursuant to this chapter, or evidence

derived therefrom, on the grounds that -

(i) the communication was unlawfully

intercepted;

(ii) the order of authorization or approval

under which it was intercepted is insuffi-

cient on its face; or

(iii) the interception was not made in confor-

mity with the order of authorization or

approval.

Such motions shall be made before the trial, hear-

ing, or proceeding unless there was no oppor-

tunity to make such motion or the person was

not aware of the grounds of the motion. If the

motion is granted, the contents of the intercepted

wire or oral communication, or evidence derived

therefrom, shall be treated as having been

obtained in violation of this chapter. The judge,

upon the filing of such motion by the aggrieved

person, may in his discretion make available to

the aggrieved person or his counsel for inspec-

tion such portions of the intercepted communica-

tion or evidence derived therefrom as the judge

determines to be in the interests of justice.”

[18 U.S.C. § 2518(10)(a)}.

Petitioner also relies on the Supremacy Clause, First

Amendment, and Fourteenth Amendment of the Consti- |

tution of the United States. These provisions provide:

“This Constitution, and the Laws of the United |

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be

made, under the Authority of the United States,

shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.”

[Article VI, ¥ 2]

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Gov-

ernment for a redress of grievances.”

[First Amendment]

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.”

[Fourteenth Amendment, § 1]

STATEMENT OF THE CASE

Petitioner was previously married to Howard Tarjeft,

with whom she had twin sons. The marriage was short-

live’. The divorce judgment, as finally amended, pro-

vides Petitioner with custody of the children, Tarjeft with

supervised visitation, and modest child support.* The

post-divorce relationship was aptly characterized by the

Master as one which made the movie, “War of the Roses”

a bed of roses by comparison (Master’s Report, A50-A69).

By 1992, Tarjeft had fallen far in arrears on his child

support. He and Petitioner had a tumultuous relation-

ship, marked by periods of civility and periods of hostil-

ity. The parents quarreled often about visitation, but

Tarjeft was allowed unsupervised visitation despite the

court order. He hoped to some day obtain custody.

Petitioner was elected in the November, 1992 general

election as a judge in Wayne County Circuit Court.* She

took office in January of 1993, and served continuously as

a circuit court judge from that time until her removal on

July 28, 1998. Unbeknownst to Petitioner at the time,

Tarjeft was surreptitiously taping their 1992-1993 tele-

phone conversations.

In 1996, Tarjeft and Petitioner were involved in a

controversy over custody of their children. He demanded

that Petitioner give him custody. When she refused, he

3 The rulings of the Master precluded much of the evidence

Petitioner sought to present to show that Tarjeft taped their

conversations for tortious or criminal purposes in violation of

Title III. Still, the testimony of Petitioner, her pleadings, and her

offers of proof were ample for the Master and the Michigan

Supreme Court (Opinion, pp. 4, 6) to understand the

relationship. In a related federal case in the United States

District Court for the Eastern District of Michigan, Ferrara v. Free

Press, #97-71136, the Hon. Patrick Duggan has denied a

summary judgment motion, ruling that there is sufficient

evidence that Tarjeft acted illegally. The State Court rulings in

this case were premised on the assumption that Tarjeft violated

Title Il.

4 Petitioner has previously been a district court judge,

defeated for re-election, then employed by the INS during the

1992 campaign.

reviewed the 1992-1993 tapes, found excerpts which con-

tained offensive language, and created an “excerpt tape”.

This contained portions of several 1992-1993 conversations

which Tarjeft had taped then. He provided the “excerpt

tape” to a reporter for the Detroit Free Press, which ran a

major article, quoting the content of the tapes, and brand-

ing Petitioner a racist.

The Judicial Tenure Commission (“JTC”) reacted by

issuing a subpoena for the “excerpt tape” and the “origi-

nal” 1992-1993 tapes from which the “excerpt tape” was

made. It filed a Formal Complaint, and then an Amended

Complaint.*

Other than an alleged statement to her son, and one

other exception,® the Amended Complaint accused Peti-

tioner of judicial misconduct for using improper language

during the 1992-1993 conversations which Tarjeft had

secretly taped.

Petitioner was accused of calling one elected circuit

court judge a “nigger bitch” (Amended Formal Complaint,

4 4), and another a “little Jew whore” (Id., J 12). Other

alleged comments about identifiable people included call-

ing a co-worker a “pushy nigger” (Id., J 1), telling Tarjeft

he had “nigger blood” (/d., p. 2), and referring to a cam-

paign supporter as an “asshole black” and “black nigger”

> The amendment added ¥ 13 which charged Petitioner

with using racial or ethnic slurs in conversations with two

former friends, John Roche and Sue Radulovich. These charges

were later dismissed. The amendment also alleged that

Petitioner used the word “nigger” in the presence of her

children. The Master found that Petitioner once used the word

in her son’s presence.

the Free Press and Tarjeft. She alleged that telephone

conversations had been illegally taped, but did not disclose

which conversations were taped, or the content of those

conversations. At a press conference regarding the federal suit,

Petitioner claimed that the tapes were “fake”. This was alleged

to be an actionable mis-representation.

(Id., | 7). The remaining charges involved use of the word

“nigger”, or a variation, without reference to any particu-

lar individual. It is undisputed that all of the pleaded

statements were made by Petitioner from the privacy of

her own home, in conversations with her ex-husband only

(with no third party listening in), which Petitioner did not

share with or disclose to anyone other than Tarjeft.

Petitioner filed a pre-trial motion to dismiss, arguing

that the First Amendment did not permit state-imposed

discipline based on the content of private conversations

(Tr. 8/21/97, pp. 19-20, 36-38). The Master denied this

motion, holding that Michigan procedures did not allow

her to dismiss the action on First Amendment grounds

(A1-A4).

At the same hearing, Petitioner sought dismissal on

the ground that the tapes were made by Tarjeft in violation

of 18 U.S.C. § 2511(1)(a) and (b), that further use or dis-

closure would violate 18 U.S.C. § 2511(1)(c) and (d), and

that 18 U.S.C. § 2515 barred use of the tapes and evidence

derived therefrom (Tr. 8/21/97, pp- 26-30, 36). Alter-

natively, Petitioner asked for a pre-trial evidentiary hear-

ing under 18 U.S.C. § 2518(10)(a) to prove that the tapes

were made in violation of Title III (Tr. 8/21/97, p. 43). The

Master denied both motions, concluding that an evidenti-

ary hearing would be “to[o] cumbersome” (Tr. 8/21/97, p.

43) (A4).

Petitioner later filed a formal motion for an evidenti-

ary hearing. This motion was also denied by the Master

(A8-A13).

Then, Petitioner filed an action for superintending

control in the Michigan Supreme Court, seeking pre-trial

review of the First Amendment and Title II] questions.

That motion was denied by the Supreme Court (A14).

Petitioner continued to assert her claims under the

First Amendment and Title III. She did so at the trial, in

her trial brief, and in her objections before the JTC and

Michigan Supreme Court.

During the course of trial, argument was held on the

admissibility of the tapes and evidence derived therefrom

(Tr. 10/3/97, pp. 103-125). The Master ruled that even if

the tapes were made for tortious or criminal purposes,

they would be admitted and considered (Tr. 10/3/97, pp.

119-120). This ruling was made on two grounds: the spe-

cial truth-seeking character of JTC proceedings made

§ 2515 inapplicable, and (assuming that the tapes were

voluntarily provided by Tarjeft), Tarjeft’s illegality did not

preclude the Government's use of the tapes once the JTC

acquired them’ (A16-A32).

Thereafter, the Examiner played a portion of a tape,

and sought Petitioner’s comment (Tr. 10/3/97, pp.

146-158). She declined to answer, citing § 2515 and this

Court’s decision in Gelbard (A33-A34). The Master held

Petitioner in contempt (A35-A40; A41-A47), and entered

an order precluding Petitioner from presenting evidence

regarding the tapes (A48-A49).

The Examiner then filed a Second Amended Com-

plaint (A128-A131). It charged that Judge Ferrara “refused

to testify on October 3, 1997, in response to a question of

the Examiner, without justification and after being ordered

to testify by the Master” (¥ 4).®

After the Examiner rested, Petitioner began to present

her case. In the main, she undertook to show that she had

? The Examiner relied on United States v. Murdock, 63 F.3d

1391 (6th Cir. 1995) as establishing a “clean hands” or “silver

platter” doctrine. Petitioner relied on this Court’s decision in

Gelbard v. United States, 406 U.S. 41 (1972), but the Master

believed that Gelbard was not binding in the Sixth Circuit (Tr.

10/3/97, p. 118). Petitioner argued unsuccessfully that these

tapes, unlike those in Murdock, were obtained by the JTC

through governmental compulsion. Petitioner also relied on

cases from other Circuits which rejected any “clean hands”

exception. United States v. Vest, 813 F.2d 477, 479-481 (1st Cir.

1987); In re Grand Jury, 111 F.3d 1060, 1077-1079 (3rd Cir. 1977);

and Chandler v. United States Army, 125 F.3d 1296 (9th Cir. 1997).

8 This amendment also charged that Respondent requested

her son to impair or destroy evidence ({ 3), but this charge was

ultimately found meritless.

friends of all races and nationalities, treated kindly African-

American friends and acquaintances, and had never discrim-

inated in her personal dealings or judicial conduct.’

To that end, Petitioner presented Avela Smith as her first

witness (A140-A152). She was an uneducated African-Ameri-

can woman who Petitioner (then a stranger) drove home to a

poor section of Detroit when Ms. Smith was stranded at a

political rally. After the publicity surfaced, Ms. Smith con-

tacted Judge Ferrara to offer her assistance.

On direct examination, Ms. Smith related Petitioner's

kindness. She testified that she had contacted the media (Tr.

10/27/97, pp. 6-8) (A143-A145). Ms. Smith also testified that

a letter had been written to a local newspaper in defense of

Judge Ferrara, but the letter had not yet been publicized (Tr.

10/27/97, p. 11) (A147-A148). The thoughts were hers, but

the writing was that of another because her handwriting was

hard to read (Tr. 10/27/97, pp- 11, 14) (A147, A150). The

writing itself (A138-A139) was in the printing of Judge Fer-

rara, with Ms. Smith’s cursive signature and address.

When Petitioner offered the writing,’ the Examiner

interrupted the direct examination for voir dire. During

9 The provision of the Michigan Code of Judicial Conduct

applicable to issues of race is Canon 2 B which states that a

judge should “treat every person fairly” “[w]ithout regard to a

person's race, gender, or other protected personal character-

istics” (emphasis supplied). This Canon is based on an ABA

model in which a proposed commentary that would ban racial

speech alone was rejected. See Abramson, Canon 2 of the Code of

Judicial Conduct, 79 Marq. L. Rev. 949, n. 15 (1996). Additionally,

M.C.R. 9.205(C)(7) makes it “misconduct” for a judge to “trea(t]

a person unfairly, discourteously, or disrespectfully because of

the person’s race...” (emphasis supplied). As discussed, infra,

the absence of discriminatory conduct has profound First

Amendment significance. For these reasons, proof of non-

discriminatory treatment was a foundation of the defense.

Petitioner prevailed on this point.

10 Over Petitioner’s objection, the Master had previously

admitted newspaper articles, letters, and opinions adverse to

voir dire, Ms. Smith testified that Judge Ferrara was the

scrivener, and that it had been prepared about two weeks

before (Tr. 10/29/97, p. 12) (A149). The Examiner’s objec-

tion to the proposed exhibit was sustained.

After this testimony, the Examiner, again over Peti-

tioner’s objection, was allowed to file a Third Amended

Complaint (A132-A137). In substance, this amendment

claimed that it was fraud and an obstruction of justice for

Petitioner’s counsel to offer the Avela Smith letter and

the witness’s direct examination testimony, without first

eliciting the date of the writing and Petitioner’s role in

writing it at Ms. Smith’s behest.

Petitioner later recalled Ms. Smith to the stand. With-

out objection, the Master admitted a separate writing of

Ms. Smith, offered to verify that her penmanship was

deficient, hence the need for a scrivener (A153-A161).

After the close of proofs, the Master issued her

Report. The Master recounted the evidence and con-

cluded that Petitioner had not engaged in discriminatory

conduct (Report, pp. 13-15) (A50-A69). Nonetheless, she

found that Petitioner made the statements attributed to

her, and that this constituted actionable misconduct (Id.,

pp. 8, 11, 18-21).

In reaching this conclusion, the Master noted Peti-

tioner’s reliance on 18 U.S.C. § 2515 and Judge Ferrara’s

repeated efforts to exclude the tapes, and the evidence

derived therefrom (Id., pp. 3, 4). She believed that the

tapes had been supplied to the Judicial Tenure Commis-

sion “unasked for” (Id., pp. 3, 4). With that premise, she

concluded that § 2515 was inapplicable under the princi-

ples of Murdock (Id., p. 4). The Master also opined that,

because of her status as a judge, Petitioner’s privacy

rights were diminished (Id., p. 18).

Having admitted the tapes that supposedly showed

otherwise, the Master found that Judge Ferrara’s claim, at

Petitioner The proposed exhibit was offered in response to that

evidence.

nn ae Ligh ee EE

a news conference, that the tapes were “take”, constituted

misconduct (Id., pp. 8, 22). This was characterized as

“public misrepresentation” (Id., pp. 8, 22).

The Master did not directly address Petitioner’s First

Amendment argument. She did, however, conclude that

Petitioner was being punished for speech, not conduct,

and for the adverse reaction of others to the content of

her conversations with Tarjeft (/d., pp. 18-20).

The Master acknowledged Petitioner's reliance on

Gelbard (Id., p. 4). The Master nonetheless concluded that

Petitioner’s refusal to answer a question based on the

tapes “was without legal justification” (Id., p. 12), consti-

tuted contempt and was judicial misconduct (Id., pp.

21-22).

In the Master’s view, Avela Smith testified honestly

about the roles of herself and Judge Ferrara in drafting

the letter (Id., p. 17). She harbored doubts over whether,

without the interruption of voir dire, Petitioner’s counsel

would have elicited evidence of the letter’s “recent vin-

tage” or Petitioner’s identity as the writer (Id., p. 17). This

was deemed misconduct (Id., pp- 17, 21-22), characterized

as a “spurious letter”, “fabrication of evidence, fraud and

obstruction of justice” (Id., pp. 21, 22).

On review, the Judicial Tenure Commission issued its

Decision and Recommendation for Order of Discipline

(A70-A74). It acknowledged that the tapes had been pro-

cured by subpoena (Decision, p. 2, ¥ 2), but did not

address the Title III implications of the Master’s error.

Indeed, the Decision did not cite or address any of Peti-

tioner’s arguments. The Commission essentially upheld

the Master’s findings that Petitioner was guilty of mis-

conduct for: her racial slurs; “publi{c] misrepresentation

that the tapes were ‘fake’ "; “attemp[t] to perpetuate a

fraud upon the court in the form of a fabricated letter”

constituting “fabrication of evidence and obstruction of

justice”; and her conduct during the formal hearing

(Decision, p. 3).!!

On review, the Michigan Supreme Court affirmed

and ordered that Petitioner be removed from office (A75-

A104). A two-judge concurring opinion would remove

Petitioner solely for the Avela Smith letter (A102-A104).

The five-judge majority took a different tack. The

Court concluded that removal was warranted only

because of the totality of misconduct it found [Opinion,

p. 2, fn. 3 (“in view of the egregiousness of respondent’s

conduct”), 10 (“Our decision is based on the nature,

extent, and frequency of the misconduct”)].

The Court did not review Petitioner’s First Amend-

ment or Title III arguments on the merits because, it

claimed, the tapes and language were not considered

(Opinion, pp. 3, 4, 11). Nonetheless, without addressing

the federal claims, the Court quoted the content of the

tapes reported in the media (Opinion, pp. 5, 6), and

expressly found that Petitioner made the statements (“the

contents of the tapes contai[n] racial and ethnic slurs

made by [Judge Ferrara]”; “the racial and ethnic slurs

made by respondent”) (Opinion, pp. 2-3). The Court lam-

basted a judge who made those “highly inflammatory”

statements as unworthy of public office because of “har-

boring and communicating such revolting views” (Opin-

ion, p. 4).

The Court found that Respondent committed miscon-

duct in stating that the tapes were “fake” (Opinion, pp.

14-15), and by refusing to answer the question (Opinion,

pp. 27-28). The Court did not attempt to harmonize these

11 Other than the Avela Smith matter, discussed separately,

the only charged conduct which occurred during the hearing

was Petitioner's refusal to answer a question based on the tapes.

Since that event was not addressed otherwise by the Judicial

Tenure Commission, except for a blanket affirmance of all the

Master’s findings and evidentiary rulings (Decision, p. 1), the

reference to conduct during the hearing must refer to the refusal

to answer, the only pleaded allegation on point.

acest wD

SaeiRi Ri babble Biase eA GOSH A CET eh RRS. 8

findings with its failure to consider the § 2515 defenses

offered by Petitioner in response to those charges. Nor

did it expressly consider the federal implications of find-

ing Petitioner culpable for her § 2515-based failure to

admit that she made the statements (Opinion, pp. 15-18).

The Court concluded that the presentation of the

Avela Smith letter was misconduct. This presentation was

characterized as “obstruction of justice”, and attempted

“fraud on the court” (Opinion, pp- 24, 29).

In addition to these rulings, the Michigan Court cited

as reasons for removal several matters which were not

charged in any Complaint or litigated, and were often

without evidentiary support. For example, Petitioner was

condemned both for “interrupting opposing counsel and

the master on several occasions” (Opinion, p. 26), and for

failing to interrupt the direct examination of Ms. Smith

(“Judge Ferrara’s silence while Ms. Smith was cross-

examined .. . shows a lack of candor with the tribunal”)

(Opinion, p-. 24). She was damned for introducing a sec-

ond letter, dated and handwritten by Ms. Smith, which

was offered, and admitted without objection, for the lim-

ited purpose of showing her penmanship (Opinion, pp-

25-26). Petitioner was deemed to have committed miscon-

duct by failing to directly admit having said the words,

even though her knowledge was derived from listening

to the tapes whose legality was being litigated (Opinion,

pp. 17-18, fn. 13). Even though the Master had refused to

allow testimony from Mr. Maul regarding a “bug” (see

Report, p. 15; Tr. 11/5/97, pp. 102-117), and excluded

what purported to be a report on that subject (Tr.

11/6/97, pp- 83-88, 104-116), Petitioner was condemned

for this exchange (Opinion, p. 27).

Petitioner filed a timely Motion for Rehearing. In

pertinent part, she contended that the Court’s finding

that Petitioner made the statements, its finding that Peti-

tioner’s “fake” comment was false, and its finding that

Petitioner was unjustified in refusing to answer all ques-

tions, hinged on the Title III issues. She also pointed out

the due process implications of the Court's retroactive re-

definition of obstruction of justice and its removal of

Petitioner for conduct which was never charged against

her.!2 And, Petitioner explained the due process problems

with a procedure by which the charges were amended to

charge her with statements that had already been made in

defense to a different initial charge. The motion was

denied (A105).

THE REASONS WHY CERTIORARI

SHOULD BE GRANTED

(1) Overview

The State has justified the use of procedures here in

issue as vindication of its right to oversee the judiciary

and remove elected judges. In the most general sense,

that interest is undeniable. In this case, that rationale

conflicts with established federal and constitutional

rights. This Court has not addressed whethes-or to what

extent, those who seek or obtain judicial office thereby

forfeit the protections afforded by Title III, the First

Amendment, and the due process guarantees of the Four-

teenth Amendment. In an era marked by vitriolic attacks

on elected officials, this Court should address the unde-

cided interplay between federal rights and judicial

removal actions [see Sup. Ct. Rule 10(c)].

In this case, the State has concluded that judicial

tenure proceedings are of a unique character, and there-

fore beyond the application of Title II. That view finds

no support in the language of § 2515, which applies to

“any trial, hearing, or other proceedings in or before any

12 Where, as here, the state court decision provides a new

construction which first gives rise to the federal question, a

motion for rehearing setting forth the federal grounds amply

reserves the issue for review by this Court. Herndon v. Georgia,

295 U.S. 441, 444 (1935); Great Northern Arco v. Sunburst Oil &

Refining Co., 287 U.S. 358, 367 (1930); Missouri v. Gehner, 281 U.S.

313, 320 (1930).

eae in ee Pe ere ae Th soit \ ities nie ith ine apktaeh il ui

Peivilei gene Pee tace Ot

court, grand jury, department, officer, agency [or] regula-

tory body . . . or other authority of . . . a State, or a

political subdivision thereof... ”. Nor does the State's

view square with § 2511(1)(c) and (d) which separately

prohibit use and disclosure. This Court should grant cer-

tiorari to determine whether the supremacy clause allows

a State to hand-carve a judge-made exception to Title Il

[see Sup. Ct. Rule 10(c)].

Similarly, the Michigan tribunals have adopted a

“clean hands” or “silver platter” doctrine, which permits

Government to use or disclose illegal tapes which it did

not create initially, but obtained by subpoena. Certiorari

should be granted to resolve the conflict between the

decisions below and those of the federal circuit courts

which have expressly rejected that very doctrine [see Sup.

Ct. Rule 10(b)].

The State has declared that Petitioner's invocation of

§ 2515 and Gelbard is a basis for removal. Its conclusion

that the principles of Gelbard are available only to those

charged with a crime is at odds with Gelbard. Certiorari

should be granted to review this unprecedented limita-

tion of Gelbard [see Sup. Ct. Rule 10(c)}.

Likewise, the Court should review the conclusion

below that the Government may punish private speech,

including epithets directed toward public officials, on the

basis of its content. And, the State has decreed that its

procedures do not permit a pre-trial challenge based on

First Amendment rights. The Court should take the

opportunity to consider whether elected judges retain the

free speech rights afforded by the First Amendment [see

Sup. Ct. Rule 10(c)].

The ordinary paradigm for American justice requires

the charging party to first articulate the charges, then

conduct a trial on those charges, based on the legality of

the conduct when it occurred. The Michigan procedure,

as applied in this case, is a radical departure from that

paradigm. The State has first conducted a hearing, then

charged Petitioner with testimony offered before the

charge was made, then removed her from office through

a retroactive construction of “fraud on the court” and

“obstruction of justice” at odds with the settled meaning

of those terms existing at the time of the relevant con-

duct. She has been removed for conduct which was never

charged against her, without notice or an opportunity to

be heard. Certiorari should be granted to review the

apparent conflict of that approach with this Court’s due

process jurisprudence, and to review the applicability of

Fourteenth Amendment protections to State judicial

removal proceedings [see Sup. Ct. Rule 10(c)].

Since Title III was enacted, there has been a prolifera-

tion of high technology, much of which can interfere with

privacy generally, some of which may be readily used for

interceptions which violate Title II]. The threat to privacy

is greater now than at any other time in our Country’s

history. The ongoing vitality of Title III’s protections is of

great public moment.

This is especially so where public officials are

involved. In these highly partisan times, it has become

routine to look for “dirt” to discredit a political opponent.

The temptation to do so through means prohibited by

Title III is considerable, particularly if those who use and

disclose illegal interceptions by others are insulated from

accountability. All too sadly, the net result is to sway

highly talented people to shun public service to avoid the

incursions on privacy which have become commonplace.

Where an elected official is forcibly removed, the electo-

rate has effectively been disenfranchised. The need for

this Court’s guidance cannot be ignored.

(2) The Question Whether Title III Applies To State

Judicial Tenure Commission Proceedings Presents

A Substantial Constitutional Issue.

This history and intent behind Title III were reviewed

in Gelbard, 408 U.S. at 46-52. At bottom, § 2515 was

enacted “to protect effectively the privacy of wire and

oral communications, [and] to protect the integrity of

court and administrative proceedings” (408 U.S. at 49).

Tree Me Dnt i |e Ser

0 9 ia Eielis Vamaitng on Bede

The Court stressed that Title III not only forbids the

initial interception, but also forbids use or disclosure

which would victimize one anew (408 U.S. at 51-52).

The Master opined that Title III applied only to crimi-

nal actions. Nothing could be further from the truth. The

Senate Report, quoted in Gelbard, 408 U.S. at 50, fn. 9,

provides, “{§ 2515] is not limited to criminal proceed-

ings.” In Gelbard, the Court noted that § 2515 restricts

governmental authority to “fin[{d] a person in civil con-

tempt for failing to cooperate with the prosecutor” (408

U.S. at 52).

Intrinsic to the protection afforded by Title III is the

guaranteed opportunity to file a pre-trial motion to sup-

press, § 2518(10)(a).!3 The salutary purpose is to withhold

further use and disclosure until a court has examined

whether the interception was unlawful. United States v.

Manuszak, 438 F.Supp. 613, 618-621 (E.D. Pa., 1977). If so,

further use and disclosu:* are averted and, if there is no

independent evidence, the accused may be spared the

rigors and jeopardy of a trial.!4 Where a facially sufficient

claim is made that the interception violated Title III, an

evidentiary hearing is required. Manuszak, supra, 438

F.Supp. at 621; United States v. Losing, 539 F.2d 1174, 1177

(8th Cir. 1976). See also United States v. Cantu, 625 F.Supp.

656, 662-665 (N.D. Fla., 1985).

The sole reason the State denied Petitioner an eviden-

tiary hearing was that it would be “to[o] cumbersome”.

13 Section 2518 has been characterized as “provid[ing] the

remedy for the right created by section 2515” (Sen. Rep. No.

1097, quoted in 1968 USCCAN 2195).

14 In the federal case, Tarjeft, the only other participant,

testified that he did not recall the 1992-1993 conversations until

he again listened to them in 1996. Similarly, Petitioner swore

that she did not recall the conversations, and that the only

knowledge she had on the subject was derived from listening to

the excerpt tape. As all supporting evidence was “derived”

from the interception, excluded under § 2515, application of

§ 2518(10)(a) would have led inexorably to outright dismissal.

No federal court has ever embraced the view that a State

may ignore Title III because it deems the federal statute

inconvenient to follow. On the contrary, the supremacy

clause requires that state interests like “convenience” be

subordinated to the controlling provisions of federal law.

See Free v. Bland, 369 U.S. 663, 666 (1962); Hamm v. Rock

Hill, 379 U.S. 306 (1964); Perez v. Campbell, 402 U.S. 637,

651-652 (1971); Nash v. Florida Industrial Commission, 389

U.S. 235, 240 (1967).

For similar reasons, it is dubious that the State can

permissibly hand-carve a “judicial tenure” exception to

§ 2515. The Gelbard Court found that § 2515 was enacted

in “unequivocal language” (408 U.S. at 47), as a result of

“congressional findings [which] articulate clearly the

intent to utilize the evidentiary prohibition of § 2515” (Id.,

p. 49), whose “importance as a protection for ‘the victim

of an unlawful invasion of privacy’ could not be more

clear” (Id., p. 50; footnote omitted). The language of

§ 2515 is all-encompassing, and plainly includes State

administrative actions like Michigan’s judicial tenure pro-

ceedings.

As a principle of statutory construction, this Court

has repeatedly recognized that a court must apply a

federal statute in accord with its plain language, resisting

the temptation to impose a judicial exception that Con-

gress decided not to include. The supremacy clause does

not permit a State to arrogate to itself the authority which

this Court is denied to create ad hoc judge-made excep-

tions to a clear federal statute.

The Master apparently succumbed to the Examiner’s

position that, “Judges are worse than criminals when

they seek to obstruct the truth from being known” (Tr.

10/3/97). One may question the proposition that judges

accused of using bad words are, in some subjective sense,

“worse” than terrorists, assassins, drug dealers, and other

“criminals” who may avail themselves of § 2515. Exclu-

sionary rules, by their very nature, exclude evidence,

necessarily “obstruct[ing] the truth from being known”.

All of this aside, it was for Congress to decide whether

the unavailability of evidence is an appropriate price to

pay for protecting citizens from being re-victimized by

the use and disclosure of evidence which exists only

because of the interceptor’s illegal conduct. It is not for a

State to second-guess the wisdom of the Congressional

calculus.

This “silver platter” or “clean hands” doctrine is not

even supported by Murdock. There, the evidence was truly

given over voluntarily, unlike here, where it was obtained

by governmental compulsion. The State decision is com-

pletely inconsistent with the federal appellate courts that

have correctly held that §§ 2511(1)(c) and (d) and § 2515

forbid governmental use of criminally obtained evidence,

even without Government culpability for the separate ille-

gality of the interception itself. United States Vest, 813

F.2d 477, 479-481 (ist Cir. 1987); In re Grand Jury, 111 F.3d

1060, 1077-1079 (3rd Cir. 1997); Chandler v. United States

Army, 125 F.3d 1296 (9th Cir. 1997).

The propriety of certiorari is not undermined by the

Michigan Supreme Court's failure to consider Petitioner's

Title II] arguments. The Court removed Petitioner for

conduct which could not be actionable if Title III applied.

To have reached its decision, it had to implicitly reject

Petitioner’s federal arguments.'°

For example, the Michigan contempt statute, much

like the federal contempt statute addressed in Gelbard, is

directed only at parties and witnesses who disobey a

“lawful” order, or refuse to answer “any legal and proper

15 Notions of “waiver” were suggested by the Examiner,

but not relied on by the State decision-makers. Plainly nothing

that occurred at trial constituted “waiver”, because Petitioner

had already preserved a standing objection to the tapes and

evidence derived therefrom. Moreover, the federal suit which

she filed did not identify which conversations were unlawfully

intercepted (there were an estimated 180 taped conversations),

much less their content. The proposition that assertion of Title III

rights constitutes waiver of those very rights does not warrant

further discussion.

interrogatory”, M.C.L.A. 600.1701(g), (i). As Gelbard

makes clear, § 2515 forbids holding in civil contempt one

who lawfully exercises the rights conferred by Title III.

Petitioner could not be deemed in “contempt” if Gelbard

and § 2515 were deemed applicable.

Likewise, Petitioner was condemned for stating that

the tapes were “fake”. The only evidence to support the

critical element, falsity, was the tapes themselves, or the

conclusions derived from the tapes by those who listened

to them. Unless this evidence was allowed by Title III, the

charge was factually untenable.

The Michigan Supreme Court condemned Petitioner

for her failure to directly admit that she said what the

tapes reported. Having no independent knowledge, any

direct response which Petitioner could give would be

derived from the tapes, whose admissibility under § 2515

she continued to challenge. In this respect as well, the

removal of Petitioner hinges on the correctness of her

invocation of the federal rights founded in § 2515 and

Gelbard.

(3) The Question Whether A State Can Impose Disci-

pline For The Content Of Private Conversations Is

A Substantial Constitutional Issue.

At the outset, it is important to stress what this case

does not involve. It does not involve a public communica-

tion which intrudes on the privacy of others or foists

itself on an unwilling listener [compare Cohen v. Califor-

nia, 403 U.S. 15 (1979) and Erzoznik v. City of Jacksonville,

422 U.S. 205 (1975)]. The words were not confrontational

“fighting words”, publicly uttered with the intent to pro-

voke violence [compare Choplinsky v. New Hampshire, 315

U.S. 568 (1942) and Brandenburg v. Ohio, 395 U.S. 444

(1969)]. Nor were they obscene [compare Cohen and Roth

v. United States, 354 U.S. 476 (1957)].

Instead, the words were uttered in private conversa-

tions, from the sanctity of Petitioner’s own home, with a

single willing listener, her ex-husband. As the Master

recognized, the case entails “speech” alone, not “con-

duct”. Moreover, the charges against Petitioner were

based on the content of the speech; that the words used

were offensive to others’ sense of political or linguistic

correctness.

At its very core, the First Amendment protects

against governmental retaliation based on the content of

speech. That Amendment, applicable to the States by

operation of the Fourteenth Amendment, would unques-

tionably apply if Petitioner were not a judge.

Here, for example, Petitioner was charged with crit-

icizing two public officers as a “nigger bitch” and a “little

Jew whore”. Under this Court’s settled jurisprudence,

criticism of a public official, in hyperbolic epithets which

defy objective truth or falsity, are not sanctionable. Milk-

ovich v. Lorain Journal Co., 497 U.S. 1 (1990). As to the

charge that it was sanctionable to use the words “Arabs”

or “nigger”, even the public expression of foul language

is protected from state incursion. Cohen, supra; Collins v.

Smith, 578 F.2d 1197 (7th Cir. 1978) (racial hate speech is

constitutionally protected).

To be sure, States have a legitimate interest in pun-

ishing discriminatory conduct by a judge, but ‘here there

was none. Whether a purported state interest in regulat-

ing private speech of judges trumps First Amendment

rights is an altogether different question. In a related

context, this Court has intimated that the State interest in

regulating attorneys does not justify withholding attor-

ney status on the basis of protected First Amendment

conduct, Schware v. Board of Bar Examiners, 353 U.S. 232,

243-246 (1957) (past membership in Communist Party).

The issue of whether otherwise protected speech may be

penalized when made by a judge is an unanswered one.

That question should be considered by this Court.

The Michigan procedures have been construed as

forbidding dismissal based on the First Amendment.

Except for that quaint procedure, the Master would have

been required to apply the United States Constitution

and, if Petitioner’s First Amendment argument was mer-

itorious, dismiss the action. It is the Michigan procedure

foreclosing pre-trial First Amendment review which per-

mitted the proceedings that culminated in Petitioner’s

removal.

The abstract First Amendment protection against

speech-based discipline is not self-effectuating. That pro-

tection is rendered worthless without an available pro-

cedure for vindicating constitutional rights. The Michigan

scheme for disciplining judges, without a pretrial pro-

cedure to decide First Amendment claims, raises substan-

tial questions under the supremacy clause, the First

Amendment, and the Fourteenth Amendment.

(4) The Question Whether Michigan Judicial Tenure

Procedures Comport With Due Process Require-

ments Under The Fourteenth Amendment Is Sub-

stantial.

This Court has not decided whether a judge, in

removal proceedings, enjovs the due process protections

of the Fourteenth Amendment. It has, however, recog-

nized that State proceedings regarding attorneys must

comply with due process requirements. Schware, supra;

Willner v. Committee on Character and Fitness, 373 U.S. 96,

103 (1963). The Court should consider whether, and to

what extent, due process requirements apply to judicial

removal actions. This is especially so since the proceed-

ings below are woefully deficient under ordinary due

process principles.

a. The Use Of Evidence In A Fashion That Pre-

cludes The Accused From Offering Evidence.

The tapes were presented without authentication. As

a result, Mr. Tarjeft was not presented as a witness by the

Examiner. By the time Petitioner began her case, an Order

had been entered precluding her from offering evidence

regarding the tapes. With the Master’s refusal to permit

an evidentiary hearing, Petitioner was denied the oppor-

tunity to offer any evidence regarding the very source of

the charges against her.

It is true that the order precluding evidence was

: issued as a result of Petitioner’s refusal to answer

whether she recalled hearing a snippet of one conversa-

tion. If, as we submit, Petitioner’s position was justified

under Gelbard, the order precluding evidence must fall as

well. Moreover, even if the refusal to answer is regarded

as unjustified, the only arguable impact was to impair the

Examiner’s ability to prove the single charge based on

that tape, not to impair his ability, and obligation, to

prove the other tape-related charges.

Notably, the Master admitted the tape cassettes into

evidence without ever allowing Petitioner or her counsel

to listen to the entirety of the physical exhibit.'© The

Master found Petitioner guilty of one charge, based on a

tape that Tarjeft never produced, without allowing

inquiry as to why it was not produced. The net impact of

; the Michigan procedure is to allow reliance on evidence

‘na fashion that disables the accused judge from showing

that the facts are different from what the evidence

reflects. Such rules, which operate to deprive a litigant of

the means necessary to sustain her defense, are violative

of due process guarantees. Ferguson v. Georgia, 365 U.S.

570 (1961); Chambers v. Mississippi, 410 U.S. 284 (1973). See

also United States v. Nixon, 418 U.S. 683 (1974) and the

plurality opinion of Justice Marshall in Jenkins v.

McKeithen, 395 U.S. 411 (1969). As stated in Bowman Trans-

portation, Inc. v. Arkansas Best Freight System, Inc., 419 US.

281, 288, fn. 4 (1974), “The Due Process Clause forbids an

16 The cassettes included both Tarjeft’s conversations with

Petitioner and those with his children on the same day or nearly

the same day. Petitioner filed a motion, seeking to listen to the

entire content of the exhibit, but the Master denied this motion,

instead allowing Petitioner to listen only to the Tarjeft-

Petitioner conversations on which charges were based.

agency to use evidence in a way that forecloses an oppor-

tunity to offer a contrary presentation.”

b. The Ex Post Facto Re-Definition Of “Obstruc-

tion Of Justice” And “Fraud on the Court” To

Justify Removing Petitioner For The Avela

Smith Letter.

In the direct examination of Ms. Smith, Petitioner’s

counsel elicited that the letter had been penned by

another, at Ms. Smith’s request, and had not yet been

published. Before direct examination was interrupted by

voir dire, Petitioner’s counsel did not amplify this testi-

mony to identify the name of the scrivener or its date. For

this, Petitioner was found to have “obstructed justice”

and attempted to perpetrate a “fraud on the court”.

Implicit in this ruling is the notion that a party whose

attorney presents a witness must elicit on direct examina-

tion all testimony which might detract from the witness’s

testimony. Until the decision in this case, no Michigan

decision even remotely suggested the existence of this

“obligation”. Indeed, that notion is at odds with an

adversarial system of justice in which each side elicits

evidence thought favorable, leaving it to the opposing

attorney to elicit, in cross-examination, testimony favor-

ing the other side. Michigan’s unprecedented departure

from longstanding courtroom procedure — in a case where

the witness’s testimony was unquestionably truthful, and

where the fact that she did not pen the letter and that it

was not yet published were elicited, albeit not compre-

hensibly — is remarkable indeed.

In People v. Thomas, 438 Mich. 448, 457-458; 475

N.W.2d 288 (1991), the Supreme Court upheld dismissal

of the charge that a police officer engaged in “obstruction

of justice” by falsifying a police report. The Court held

that the term refers to twenty-two separate offenses clas-

sified in Blackstone, Commentaries, 161-177 (1890)

(Thomas, 438 Mich at 457-458, fn. 5). As the Thomas Court

held, “To warrant the charge of obstruction of justice,

defendant’s conduct must have been recognized as one of

the offenses falling within the [Blackstone compiled] cate-

gory’.

The conduct of Petitioner does not come close to any

of the 22 separate offenses defined by the Michigan term

“obstruction of justice”. This was the state of the law

during Petitioner’s trial. The evidence offered from Ms.

Smith simply did not constitute “obstruction of justice”

under Michigan law at the time it occurred.

Nor did it constitute “fraud on the court” under

then-existing Michigan law. That term is defined as

occurring “when some material fact is concealed from

that court or when some material misrepresentation is

made to that court”, Banner v. Banner, 45 Mich. App. 148,

154; 206 N.W.2d 234 (1973). The term covers a wife’s

concealment during a divorce case that she is pregnant by

another man [DeHaan v. DeHaan, 348 Mich 199; 82

N.W.2d 432 (1957)], or the filing of a false probate court

account [Burnham v. Kelley, 299 Mich. 452, 460; 300 N.W.

127 (1941)]. However, a partial disclosure, accurate as far

as it goes, does not constitute “fraud on the court” [Young

v. Young, 342 Mich. 505, 509; 70 N.W.2d 730 (1955)

(alleged failure to disclose all assets)]; Banner, supra (no

“fraud on the court” for withholding proof of reconcilia-

tion where possible reconciliation was mentioned and no

further inquiry was made). Moreover, to be actionable, a

concealment must be material to the ultimate outcome,

Baum v. Baum, 20 Mich. App. 68, 72-73; 173 N.W.2d 744

(1969).?7

At bottom, the Michigan Supreme Court has re-

defined “obstruction of justice” and “fraud on the court”

to penalize conduct which was neither under the then

existing law. This Court has recognized that unforesee-

able judicial enlargement of a criminal statute, to reach

17 The date of the letter and the identity of the scrivener

were not even critical to evidentiary admissibility, much less

material to the outcome of the case.

_—————————eeereereerrerereeeeee

conduct not previously forbidden, offends the principles

which bar ex posto facto legislation, and violates due pro-

cess guarantees. Marks v. United States, 430 U.S. 188,

191-192 (1977); Bouie v. Columbia, 378 U.S. 347, 350-353

(1964); Rabe v. Washington, 405 U.S. 313 (1972).

c. The “Trial First - Charge Later” Feature Of

Michigan Procedure.

This case involves initial charges deficient under Title

II] and the First Amendment, used as a springboard to

hale Petitioner to trial, then use her defenses to the initial

charge to level new accusations based on her prior trial

conduct. At the very heart of the “due process” guaran-

teed by the Fourteenth Amendment is fair advance notice

of the charges. The practice of holding a bar disciplinary

hearing on one charge, then disciplining the accused for

previously uncharged conduct arising from the hearing,

was roundly criticized by this Court in In Re Ruffalo, 390

U.S. 544, 590-552 (1968):

“In the present case petitioner had no notice

that his employment of Orlando would be con-

sidered a disbarment offense until after both he

and Orlando had testified at length on all the

material facts pertaining to this phase of the

case. As Judge Edwards, dissenting below, said,

‘Such procedural violation of due process would

never pass muster in any normal civil or crimi-

nal litigation.’ 370 F2d, at 462” (emphasis in the

original; footnote omitted).

* * *

“The charge must be known before the proceed-

ings commence. They become a trap when, after

they are under way, the charges are amended on

the basis of testimony of the accused. He can

then be given no opportunity to expunge the

earlier statements and start afresh” (footnote

omitted).

Biibiniai on

* * *

“This absence of fair notice as to the reach of the

grievance procedure and the precise nature of

the charges deprived petitioner of procedural

due process.”

d. Removing Petitioner For Conduct Not Alleged

To Be Misconduct In Any Complaint.

The removal grounds cited by the Michigan Supreme

Court included many findings which were never alleged

in any Formal Complaint or litigated. This procedure is

also constitutionally deficient.

In Michigan bar disciplinary proceedings, the State

Supreme Court has had no difficulty discerning that the

core due process guarantees — notice of the charges and

an opportunity to be heard — are violated when an attor-

ney is disciplined for conduct which has never been

charged. State Bar v. Fried, 388 Mich. 711, 715; 202 N.W.2d

692 (1972); State Bar v. Jackson, 390 Mich. 147, 155; 211

N.W.2d 38 (1973) (citing Ruffalo); State Bar v. Corace, 390

Mich. 419, 425; 213 N.W.2d 124 (1973). Other courts have

reached the same conclusion. See Office of Disciplinary

Counsel v. Simecek, 699 N.E.2d 933 (Ohio, 1998); Committee

on Professional Ethics and Conduct v. Wenger, 454 N.W.2d

367 (lowa, 1990).

In Rabe, supra, 405 U.S. at 315, the Court eloquently

addressed this very point:

“It ig as much a violation of due process to

send an accused to prison following conviction

of a charge on which he was never tried as it

would be to convict him upon a charge that was

never made.’ Cole v Arkansas, 333 US 196, 201, 92

L. Ed 644, 47, 68 S Ct 514. Petitioner’s conviction

cannot, therefore, be allowed to stand. Gregory v.

City of Chicago, 394 US 111, 22 L Ed 2d 134, 895

Ct 946; Garner v Louisiana, 368 US 157, 7 LEd 2d

207, 82 S Ct 248; Cole v Arkansas, supra.”

Petitioner was never charged with culpability for the

second Avela Smith letter (Opinion, pp. 25-26). She was

never charged with misconduct for offering the testimony

of Mr. Maul!§ (Opinion, -pp. 26-27). No Complaint

charged her with culpability for statements made at oral

argument (Opinion, pp. 2-3, 15-17). No allegation was

made that Petitioner was subject to discipline for “inter-

rupting opposing counsel and the Master on several [uni-

dentified] occasions” (Opinion, p. 26), or that her failure

to interrupt the voir dire of Ms. Smith was also miscon-

duct (Opinion, p. 24). Petitioner was not charged with

“unnecessarily vague” testimony (Opinion, p. 27), much

less given any notice of what testimony was thought to be

SO, Or an opportunity to be heard on that point. There was

no misconduct charge based on the fact that Judge Fer-

rara, “refused to divulge her [home] phone number”

(Opinion, p. 28); at trial, the question was satisfactorily

resolved by the stipulation that the telephone number on

Tarjeft’s phone bill was Petitioner’s.

Undeniably, the Michigan Supreme Court removed

Petitioner, at least in part, for conduct which was never

charged or litigated. The due process violations inherent

in that procedure are staggering.

WHEREFORE, Petitioner prays that this Honorable

Court grant her Petition for Writ of Certiorari.

Respectfully submitted,

BeNnpurRE & THOMAS

Mark R. Benpure (P23490)

Attorneys for Petitioner

577 East Larned, Suite 210

Detroit, Michigan 48226-4392

(313) 961-1525

Dated: January 4, 1999

18 In this respect as well, removal violates the principle that

a State may not use evidence in a way that prohibits a defense.

Here, the Supreme Court damned Petitioner for offering proof

of a “bug”, yet forbade Petitioner the opportunity to prove that

it was.

INDEX TO APPENDIX

Page

Oral ruling denying motion for evidentiary hear-

ing and denying motion to dismiss on First

Amendment grounds (8/21/97)...------++ss+0000) Al

Order (9/3/97) ...---cceecccccccrerercccresrcrcesees: A5

Oral ruling denying motion for evidentiary hear-

ing DPFAIOT) case cereveessrcbvsccasessererererss A&

Order (9/29/97) ...-..ccsecccecccccccereecrcereree: Al2

Michigan Supreme Court Order denying motion

for superintending control (9/25/97)....---+-++++ A14

Oral ruling of continuing objection (9/29/97) ...... A15

Oral ruling admitting tapes (10/3/97) Re eye's bes Al6

Invocation of federal rights in refusing to answer

questions (10/3/97). ..-...-++++seerrrrrere ttt A33

Oral contempt finding (10/3/97)...-------+++55000 7 A35

Oral ruling on contempt sanctions (10/9/97)...... +1 A41

Contempt Order (10/14/97)....-------++sesrr trees A48

Master’s Report ‘CULL. .) eee A50

Judicial Tenure Commission Report and Recom-

mendation (2/9/98) .....--ceeeeerrteee steer A70

Michigan Supreme Court Opinion (7/28/98) ......- A75

Michigan Supreme Court Order denying Motion

for Rehearing (10/7/97) ....----+-+essrrrr tre A105

First Amended Formal Complaint gt og Sie A106

Second Amended Formal Complaint (10/10/97) .. .A128

INDEX TO APPENDIX Continued

Page

rhird Amended Formal Complaint (10/29/97)..... A132

Aapee: De WN oe ee ae as oe hee taeeee A138

lfestimony of Avela Smith (10/27/97) ............. A140

festimony of Avela Smith (11/6/97) .............. A153

Testimony of Robert Maul (11/5/97).............. A162

deka VAR etal i aah tte ifn: Somat teh amen pies

Motion Hearing - 8/21/97 Denial of Motion to Dismiss

and Motion for Evidentiary Hearing

* * *

[p. 40] THE COURT: Well, I’ve heard enough,

l've heard enough. There are a number of things that I

want to comment before I make my ruling.

The question of whether the offensive language was

made is a question of fact to be decided by me, the Master

in this hearing and the law.

I’m certainly troubled, I have some trouble because

of these taped conversations. The motion to dismiss has

raised questions of first amendment rights and while |

will not take second chair to anybody in terms of assert-

ing first amendment rights, it seems to be that the accep-

tance of a judicial position [p. 41] includes self-imposed

restrictions relative to the exercise of first amendment

rights. Clearly, clearly that can be challenged but every

place that I have seen it challenged, the right has suc-

cumbed to the public right to have judges who are impar-

tial triers of fact, etcetera.

The questions relative to the wire tap, the questions

relative to the misrepresentations, the counts of the mis-

representations are questions of fact as is whether the

language alleged to have been spoken was, in fact, spo-

ken.

You have raised a question of lack of separate counts.

Clearly, the issue raised in the complaint ari the now

amended complaint goes to whether or not certain offen-

sive statements were made to one or more people and

whether thcse statements were made. Those are all ques-

tions of fact. It may turn out that the taped telephone

conversations become potentially made for illegal pur-

poses but there is no finding of fact on that issue that has

been made by me. I have had no testimony, I have had

representations made and counter, you know, countered

but I have come to no conclusion about this. I recognize

that there is a potential but I have come to no conclusion

about that nor can I in the context of this hearing.

So, in essence, I would deny the motion on the basis

of what has been raised in the context of it. But I agree

with my predecessors as Masters. I believe that my

charge and I recognize that it is, my charge is a limited

one, my charge is to decide questions of fact. | am merely

the neutral persona of the Tenure Commission for pur-

poses of fact finding.

And it is folly to suggest and Mr. Sobel mentioned

this, it is folly to suggest that I have the authority, acting

as the penumbra of the Commission [p. 42] to dismiss a

complaint that has been authorized by the Commission. I

just simply do not believe that the rules give me that

authority. This is one of the principle distinctions

between these proceedings and normal civil proceedings

where such a motion is entirely appropriate. This is not

necessarily a situation that I can disagree with or agree

with. I think it’s a situation that is, given the character of

my position. This is something that could be again, as

we've all said, this has never been examined by the

Supreme Court but when you have these strange pro-

ceedings, I must look to what other minds have said in

advance and see if I disagree with them and I find, in

essence, that I do not just because of my odd position,

5A WRC Mes ~ aided Woe RI, BHI

although appointed by the Supreme Court, my duty, as I

perceive it, is to assess the facts, resolve them, make a

report that contains recommendations one way or the

other.

So, I am compelled to deny your motion.

With those aspects of it that relate to the lack of

separate counts, I'm troubled by the, was it paragraph 13,

which mentioned the attorney Lawrence Stockler’s repre-

sentations that were allegedly made on behalf of Judge

Ferrara. I can’t really see that I can charge Judge Ferrara

with those statements unless there is some fact finding

that shows that she authorized the making of such state-

ment. The fact that a count might be weaker than another

count doesn’t mean that it should not be considered but

that goes, again, that goes again to issues of fact and not

to whether or not the count should be there or not be

there as I see it.

Mr. Sobel, I trust you will prepare an order consistent

with all of this?

MR. SOBEL: Yes, your Honor.

[p. 43] MR. BENDURE: One quick question if I

might, your Honor.

We had requested in our briefs minimally an eviden-

tiary hearing with respect to the issue of wire taping

because it seems to me that the federal exclusionary

statute would exclude it’s admission as substantive evi-

dence. Certainly, you do have the authority to rule on the

admissibility of evidence and, therefore, what we are

asking for is an evidentiary hearing to enable us to pro-

vide the facts -

THE COURT: - No, I’m not going to allow an

evidentiary hearing, I mean, I just think this is getting to

cumbersome. If -- this issue can be raised at the hearing

now scheduled for September 29 and we'll rule on these

matters, I will rule on these matters as they arise during

the context of the hearing.

* * *

ida aan area Sk aa A LR alas aS le Ree

BASE ANIA

STATE OF MICHIGAN

BEFORE THE MICHIGAN JUDICIAL

TENURE COMMISSION

COMPLAINT AGAINST:

FORMAL COMPLAINT

HON. ANDREA J.

FERRARA NO. 32

Judge, 3rd Circuit Court

Detroit, Michigan

ORDER

THIS MATTER came before the Master on August

21, 1997, for hearing on Respondent's Motion to Dismiss

Complaint and/or to Correct or Strike Non-Conforming

Pleadings and the Judicial Tenure Commission’s Motion

for Leave to Amend Formal Complaint No. 52. At the

time of the hearing, in addition to offering oral argument

relating to the pending motions, Respondent's counsel

and the Examiner made oral requests for other relief.

After considering the records and files herein, the

requests and arguments of counsel, being fully advised,

IT IS HEREBY ORDERED as follows:

th Respondent's Motion to Dismiss Complaint and/

or to Correct or Strike Non-Conforming Pleadings 1s

denied in its entirety,

a. Insofar as Respondent seeks dismissal of the

Complaint, the Motion is denied for the reason

that the Master is without authority to consider

or grant a dispositive motion; and

A6 -

b. Insofar as Respondent challenges the ade-

quacy of the pleadings, the Motion is denied for

the reason that the pleadings are adequate;

2. The Judicial Tenure Commission’s Motion for

Leave to File an Amended Formal Complaint is granted;

3. Respondent’s oral Motions for a Limiting order

and an Adjournment of the Hearing are denied;

4. Respondent’s witness and exhibit lists shall be

filed and served no later than August 29, 1997; provided,

however, both Respondent and the Judicial Tenure Com-

mission may file a list of witnesses and a list of exhibits

pertaining exclusively to the amended portions of Formal

Complaint No. 52 on or before September 5, 1997;

5. Respondent shall file and serve a verified

Amended Answer to the original Complaint on or before

August 29, 1997;

6. Howard Tarjeft shall make available for examina-

tion by Ed Primeau and Ted Lewis segment seven of the

tape recordings on or before August 29, 1997;

7. Pre-hearing memoranda shall be filed on or

before September 22, 1997; and

8. Respondent’s request for a evidentiary hearing

regarding the admissibility of the tapes is denied without

prejudice.

This Order has been signed on this 3rd day of August

September, 1997.

/s/ Vesta Svenson

HON. VESTA SVENSON,

MASTER

Approved as to Form:

/s/ Allan D. Sobel

Allan D. Sobel (P 40872)

Examiner

/s/ Mark R. Bendure

by ads per consent 8/28/97

Mark R. Bendure (P23490)

Attorney for Respondent

Judge Ferrara

Motion Hearing - 9/24/97

Denial of Motion for Evidentiary Hearing

* * *

[p. 31] witness list, as this hearing goes on, I am prepared

to allow you to do it even though it’s a witness of which

we have had no notice until that time. What’s fair is fair

and I’m going to allow it to both of you. I think that’s the

only way that we’re going to get this thing resolved.

I think have to stop talking about these tapes and in

that context - I understand your position, I understand

you position, Mr. Bendure, but part of this is just only so

many words and there comes a point where you just have

to stop.

MR. BENDURE: I understand that, can I be

heard real quickly on the evidentiary hearing point?

THE COURT: Yes.

MR. BENDURE: We have the Federal statute

which we think allows an evidentiary hearing and would

suggest requires it. I don’t know that it’s going to cause

any additional time in the overall scheme of things

because, unless the Court would foreclose that objection

all together, we would expect to get into it with the

witnesses anyhow. It’s just a question of whether we call

Howard Tarjeft, for example, one day of evidentiary hear-

ing testimony and one day of other testimony or whether

we slop it all together in two days. So I’m not sure there

is a time savings.

But there is something, I think, very important which

is the Federal statute itself. I think the very purpose of

that is to go through the process of the hearing in deter-

mining whether they were legally or illegally made in the

first instance —

THE COURT: - Isn’t there a case, actually, I

have not completely [p. 32] read, I think it’s in your brief,

is it not, Mr. Sobel —

MR. SOBEL: - I would like to address that case

that I think he may be referring to -

THE COURT: - A fair exhaustive disquisition

on the tapes re: the Federal statute. Have you read that?

MR. BENDURE: Is that the silver plate case,

that it’s on a silver platter?

MR. SOBEL: It’s the case of United States v.

Murdock.

MR. BENDURE: Right.

THE COURT: I haven’t read that, I haven’t got

that -

MR. SOBEL: Which basically holds that if a

government agency, with clean hands, gets a lucky break

and falls into possession of tape recordings, then whether

they were made legally or illegally under the statute,

does not effect [sic] admissibility, that the government is

entitled to offer and have the tape recordings admitted

into evidence because it has clean hands and is not to be

effected [sic] by the statute which only intends to bar a

wrongdoer from relying upon illegally —

THE COURT: - You know | haven’t read that

case. Isn’t that a terrible case, Mr. Bendure?

Al0

MR. BENDURE: Well, it’s contrary to the stat-

ute, it’s also contrary to two other -

THE COURT: -— Does it discuss the statute?

MR. SOBEL: It directly interprets the statute

and, unfortunately, for Judge Ferrara, it is the law of this

Circuit, it’s a Sixth [p. 33] Circuit opinion decided ini-

tially in August of 1995 and then reviewed and confirmed

after rehearing in bank (sic) in October of 1995 and that is

the law of this Circuit. Unfortunately, while there may be

for Judge Ferrara, while there may be opinions from

other Circuits that view the law differently, this is the

controlling legal precedent.

MR. BENDURE: We're certainly not, you're cer-

tainly not bound by Sixth Circuit authority.

THE COURT: Last time I checked the State of

Michigan was in the Sixth Circuit.

MR. BENDURE: It was but certainly a State

Court isn’t bound by it. It is bound by the best interpreta-

tion of the Federal statute it can get. It’s not like you are

an Eastern District Court Federal Judge who would be

bound by tt any more than a Federal Judge -

THE COURT: - Mr. Bendure, I think you better

not say anything more on the record about what I’m

bound by. I think I am bound by a Sixth Circuit case on

an issue that comes before me.

MR. BENDURE: It’s contrary to the statute and

the overwhelming weight of law and has since been

criticized by the Sixth Circuit.

eas felt oe

fenced yee

uate be caer Sele Pee Nas taal)

All

THE COURT: All right, I think we’re done with

everything I had to decide but I do need to see you folks

in my Office.

MR. SOBEL: Okay, Judge, just before we break,

can I put on the record a few exhibits that I wanted to

give to Mr. Bendure?

THE COURT: Sure.

MR. SOBEL: We want to, we were intending to

introduce

Al2

STATE OF MICHIGAN

BEFORE THE MICHIGAN JUDICIAL

TENURE COMMISSION

COMPLAINT AGAINST:

HON. ANDREA J.

FERRARA FORMAL COMPLAINT

Judge, 3rd Circuit Court NO. 52

Detroit, Michigan 48226

ORDER

THIS MATTER came before the Master for a hearing

on September 24, 1997, at which time the Examiner and

Associate Examiner were present, and Mark R. Bendure

appeared on behalf of Judge Ferrara. After considering

the records and files herein, and the argument of counsel,

being fully advised.

IT IS HEREBY ORDERED as follows:

1. The Examiner’s Motion to Supplement Witness

and Exhibit Lists is granted;

2. Unless Respondent provides the Examiner with

copies of ail medical records in the possession or control

of each and every physician, hospital, or other custodian,

from whom Respondent has received treatment for a

mental condition since January 1, 1992, by no later than

Tuesday, September 30, 1997, Respondent is barred from

presenting or introducing any physical, documentary or

testimonial evidence relating to her medical history or

mental or physical condition at the time of the hearing;

Al3

3. The Examiner shall file and serve Respondent's

counsel with a list of witnesses the Examiner actually

intends to call at the hearing on September 25, 1997, by 5

p-m., and the Respondent shall file and serve the Exam-

iner with a list of witnesses the Respondent actually

intends to call at the hearing on September 26, 1997, by 5

p-m. The Master will consider requests to supplement

these witness lists based on a showing of need to rebut

evidence introduced during the hearing by the opposing

party;

4. Respondent’s Motion to Review Full Tapes, and

to Review Tapes of Conversations of Howard Tarjeft with

Respondent's Children, Sue Radulovich, or John Roche is

denied;

5. Respondent’s Motion to Compel Production of

Tapes, to Dismiss for Noncompliance With order, or for

Issuance of Order to Show Cause is denied; and

6. Respondent’s Motion for Evidentiary Hearing is

denied.

This Order has been signed’ on this 29th day of

September, 1997.

/s/ Vesta Svenson

HON. VESTA SVENSON,

MASTER

Al4

ORDER Michigan Supreme Court

Lansing, Michigan

Conrad L. Mallett, Jr.

Chief Justice

James H. Brickley

Michael F. Cavanagh

Patricia J. Boyle

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Justices

Entered: September 25, 1997

109593(5)(6)

HON. ANDREA J. FERRARA,

Plaintiff, SC: 109593

’ JTC: Formal Complaint

2 No. 52

MICHIGAN JUDICIAL

TENURE COMMISSION,

Defendant.

On order of the Court, the motion for immediate

consideration is considered, and it is GRANTED. The

complaint for superintending control is also considered,

and relief is DENIED, because the Court is not persuaded

that it should grant the requested relief.

50925

[SEAL] I, CORBIN R. DAVIS, Clerk of the Michigan

Court, certify that the foregoing is a true and

complete copy of the order entered at the direc-

tion of Court.

September 25, 1997 /s/ Corbin R. Davis

Clerk

Al5

Trial Hearing - 9/29/97

Ruling Regarding Continuing Objection

* * *

[p. 9] THE COURT: And lastly, I do note, and I

want the record to be absolutely clarion clear that the

Respondent has a continuing objection to the admis-

sibility and use of these tapes for any purpose in these

hearings. I made a ruling last week relying on the Mur-

dock case from the Sixth Circuit which seems to me com-

pelling in terms of the ruling, but I note that you have

made a continuing objection, Mr. Bendure and Ms. Cum-

bey, relative to the use of these tapes, and in the interest

of economy, every time these tapes come up, I will note

that your objection is continuing.

* * +

Al6

Trial Proceedings — 10/3/97

Ruling Allowing Tapes Over 18 U.S.C. § 2515 Objection

* * *

[p. 107] MR. SOBEL: The next point why it is

more appropriate to apply Murdock, we are in a disciplin-

ary proceeding. The public has a stake in the outcome of

this proceeding. More than any other type of case, we

need to find out what the truth is, you need to act upon

the truth as does the Commission, as does the Supreme

Court ultimately.

This case in particular by its nature calls out for you,

the Commission, and the Supreme Court to consider all

the relevant evidence relating to the issues in dispute.

The Murdock decision gets you that relevant evident [sic]

to consider.

The last reason I would cite for application of Mur-

dock relates to Judge Ferrara’s own choice of the Sixth

Circuit law as controlling issues relating to the tapes in

this case. As the Court will recall the evidence, Judge

Ferrara before [p. 108] this judicial disciplinary proceed-

ing was ever commenced by the Commission brought a

civil action in the United States District Court for the

Eastern District of Michigan in which she sued the

Detroit Free Press, David Ashenfelter, one of its reporters,

and Howard Tarjeft for a hundred million dollars.

Now, clearly, the Eastern District of Michigan is obli-

gated to apply Sixth Circuit decisional law with regard to

the tapes at issue in this case. So as to that action which

she filed on the northeast corner of Fort and Washington

Boulevard, Judge Ferrara willingly submitted to Sixth

Circuit decisional law relating to the tape recordings in

eat a A i ae

Al7

this case. But as to the disciplinary action that was filed

on the southeast corner of the same intersection, she

wants the Master to reach out to some district circuit in

Boston or somewhere, anywhere that will help her avoid

the admission of the tapes into evidence.

That type of inconsistency is inappropriate. Instead,

you should apply the same law that the Federal court will

necessarily have to apply in the action that Judge Ferrara

herself filed as it relates to the tapes in question.

So if you are going to reconsider your decision

regarding admissibility, we ask that you do it now

because it is going to affect whether we call certain other

witnesses. It is going to affect the evidence that will be

necessary to [p. 109] examine in the proceeding, evidence

that we believe is extraneous to the central issues in the

case and the parties really have to have some final deter-

mination.

THE COURT: I agree with you, Mr. Sobel. Any-

thing further, Mr. Bendure?

MR. BENDURE: Oh, yes, your Honor.

THE COURT: Briefly; we are concerned about

the length this is going on, but I also don’t want to give

short shrift [sic] to your position.

MR. BENDURE: Certainly, your Honor, I think

~ Let me start at the very beginning. We have the statute

itself.

THE COURT: I understand fully what your

position is with regard to the statute.

MR. BENDURE: Okay.

—

Al18

THE COURT: And while you are collecting

your things, I did read the Young case. Well, I scanned it. I

couldn’t read it, but I scanned what I think are the

relevant portions of it.

MR. BENDURE: Has the Court had an oppor-

tunity to review the United States Supreme Court deci-

sion in Gelbard v. United States?

THE COURT: If you have given it to me, I have.

MR. BENDURE: I am not certain I have. It has

certainly been cited and is the Supreme Court underpin-

ning of both Vest and In re -

[p. 110] THE COURT: Right. I know. I have seen

it referred to.

MR. BENDURE: Golbard was the case where a

witness was called before a grand jury to answer ques-

tions based upon illegally obtained tapes. And the wit-

ness refused to answer, and the question posed was

whether or not the victim of the taping could be pros-

ecuted for contempt of court.

THE COURT: And that was a criminal prosecu-

tion.

MR. BENDURE: It was a criminal contempt.

THE COURT: Right.

MR. BENDURE: For failure to appear before a

grand jury, and the Supreme Court in substance said,

Section 2515 is of sufficient breadth that it bars all use

including use derived thereof. Certainly, it seems to me,

under the Gelbard decision if this evidence was illegally

Al9

obtained, then my client - and she has because of her

respects for the proceedings not done so — could refuse to

answer a single question, and under the Gelbard decision

she would be entirely justified to do so.

THE COURT: This is not a criminal case, and

those tapes were obtained by the government, were they

not?

MR. BENDURE: They were obtained by the

government.

THE COURT: But these tapes haven’t been

obtained by the government.

MR. BENDURE: Then how on earth are they

offering them into evidence? They have been obtained -

[p. 111] THE COURT: They were brought into —

MR. BENDURE: They were obtained by the

government from Howard Tarjeft. There is no question

about — At least, if you will allow us an evidentiary

hearing? eS

THE COURT: He wasn't acting for the Tenure

Commission.

MR. BENDURE: He provided them that infor-

mation pursuant to his extortionate and criminal pur-

pose.

THE COURT: I understand what you are

Saying —

MR. BENDURE: 1 understand too.

THE COURT: - but that is where such an unfor-

tunate term, silver platter, comes in, but in the one

A20

instance you have a law enforcement officer or govern-

ment agent doing something on behalf of the govern-

ment.

MR. BENDURE: Right.

THE COURT: That is planting the bug or taping

the conversation.

MR. BENDURE: True.

THE COURT: In this instance you have some-

one unconnected by employment with the government.

MR. BENDURE: And that is exactly what is

addressed by the other cases that we have relied on: Vest

and In re Grand Jury and if you will let me -

THE COURT: Right.

MR. BENDURE: May I please?

THE COURT: Go on. Go on.

[p. 112] MR. BENDURE: Let me read to you

what the Supreme Court said in Gelbard, and i under-

stand whether we are talking about a criminal case, Judi-

cial Tenure Commission case, or any such case, any rule

of law that excludes evidence necessarily runs contrary to

the interests in presenting that evidence, however, it is

obtained.

THE COURT: I agree.

MR. BENDURE: That is a given, but what we

have is in our humble view a congressional enactment

that does not enable anybody, not the Judicial Tenure

Commission, to take advantage of evidence which if Fed-

eral law was followed would never even exist. Here is

A21

what the Gelbard court said, and I think this is horribly

significant — Section 2515 which is the exclusionary stat-

ute:

“Its importance as a protection for the ‘victim of

an unlawful invasion of Privacy’ could not be

more clear. The purposes of Section 2515 and

Title III as a whole would be subverted were the

plain command of Section 2515 ignored when

the victim of an illegal interception is called as a

witness before a grand jury and asked questions

based upon that interception. Moreover, Section

2515 serves not only to protect the privacy of

communications, but also to ensure that the

courts do not become partners to illegal con-

duct: The evidentiary prohibition was enacted

also ‘to protect the integrity [p. 113] of court and

administrative proceedings.’ ”

That is the rationale of the United States Supreme

Court that says the congressional interest is so great as to

overcome not only the interest in prosecuting the criminal

law — and I assure you my client is not charged with

committing a crime — but the integrity of grand jury

proceedings because the very purpose of the statute

entails protecting the privacy interests of the person

whose communication is illegally intercepted as well as

protecting the integrity of the courts in refusing to sanc-

tion and again administer a violation of the statute.

I ask you to look to Section 2515, and I submit to you

that its language could not be more clear.

Mr. Sobel, I believe, misspoke himself when he said

Vest refused to extend Murdock. Vest was the first case on

point. In that particular case the defendant was charged

with offenses arising from the shooting of a police officer.

A22

There was an illegal tape obtained, not by the prosecu-

tion, but was provided by someone who was cooperating

with them.

THE COURT: This is the First Circuit case?

MR. BENDURE: This is the First Circuit case. It

is the first case in the country that deals with the issue in

the wake of the Supreme Court decision in Gelbard with

its admonition to the courts, the first one to deal with an

issue where the government was not the initial perpetra-

tor but [p. 114] wanted to use the evidence.

THE COURT: And they said that 2515 had no

exception when illegally intercepted communications

were introduced.

MR. BENDURE: And let’s look at the statute —

THE COURT: And that is different from Mur-

dock; correct? That is different from the holding in — That

is the other side? 5

MR. BENDURE: Vest is the first case which

Murdock ignored or went the other way on.

THE COURT: Right.

MR. BENDURE: But let’s look at the statutory

line which is certainly an important starting point which

the Supreme Court interpreted in Gelbard as being all

inclusive in its exclusionary scope. Whenever any lawyer

or -

THE COURT: Ihave read this. I have it right in

front of me so you needn’t read it.

A23

MR. BENDURE: But the point is, if you look at

the breadth of it before a court grand jury agency, regula-

tory body of the United States, or sub-division thereof,

Congress says that it does not come in. It does not come

In.

THE COURT: If it violates the statute.

MR. BENDURE: If it violates the Statute, and

that of course is the issue yet to be resolved. We have the

Vest case which I submit is directly on point, the first one

on point. We then have the Sixth Circuit which takes the

[p. 115] opposite view in Murdock, and I believe it is Doe,

the energy case, with, I would point out, a very, very

strong dissent by Chief Judge Merritt (ph.) of the Sixth

Circuit whose point in the Doe case, Says in substance, in

effect, that it is intellectually dishonest to accept Murdock

and follow it. It was wrongly decided.

Like it or not, Congress has enacted a Statute which is

all inclusive in its scope, knows of no exception, and

furthers an over-riding Federal purpose in protecting

those whose privacy is invaded and in prohibiting all

courts and agencies from what is a second violation in

view of the statute which is the use and disclosure of

improperly obtained things.

If the Court were to allow it, the Court in all practical

purposes is itself violating the Federal Statute, and |

suggest that if we are talking about bringing disrepute on

the courts, knowingly violating a Federal statute by Con-

8tess would accomplish that. That is exactly why the

exclusionary statute is as broad as it is.

A24

Then we have the more recent Grand Jury case from

the Third Circuit which on the core issue of the so-called

silver platter doctrine looks at the Vest view and the Sixth

Circuit view and says Vest is the right rule of law. Mur-

dock and the Sixth Circuit view is intellectually indefens-

ible in light of the clear language of the Federal statute

and the sentiment [p. 116] expressed by the United States

Supreme Court in the Gelbard case.

So what we have is the statutory language which I

think is eminently clear on its face: the sentiment by the

U.S. Supreme Court in Gelbard that says it extends to the

use because the courts are not to become partners in this.

THE COURT: Is that the Grand Jury case? In re

Grand Jury was also a criminal case? Right?

MR. BENDURE: Yes, your Honor.

THE COURT: The Third Circuit case, that is the

one involving a family. Right? Okay.

MR. BENDURE: Yes, and it seems to me judges

aren't worse than criminals. They should at least get the

same protection from Congress. In light of the statute that

could not be more clear that says any agency — it doesn’t

limit it to courts - it speaks of agencies of the United

States, whether we are talking the Workers Comp Appeal

Bureau, Judicial Tenure commission, Attorney Grievance

Commission, or anything else. Because, under the

supremacy clause, Congress is entitled to govern that and

simply say they can bring whatever case they want but

they can’t use illegally obtained evidence or evidence

derived therefrom to do it.

THE COURT: All right, I understand.

A25

Anything further, Mr. Sobel?

MR. SOBEL: Just a couple of things.

[p. 117] First of all, my observation would be that

Judges are worse than criminals when they seek to

obstruct the truth from being known because they are

held to a different standard. They are held to a standard

which is set forth to protect the integrity of the judiciary.

Criminals don’t have that obligation.

The Gelbard case that Mr. Bendure referred to used

some broad language. It was written in 1972. God bless

his soul, it was when Justice Douglas was on the Court.

There were a lot of very liberal statements made during

that time in the Supreme Court's history. The fact of the

matter is, the cases decided recently don’t give that

Sweeping protection that may be suggested by the lan-

guage in Gelbard, and as you have seen, the Sixth Circuit

certainly doesn’t buy into it and the Third Circuit doesn’t

either.

I am looking at Page 1075 of this In re Grand Jury case

where the Third Circuit said, and I quote: “Therefore, as

we observed in a prior case, Section 2518(10)(a) does not

authorize a victim of an illegal wiretap to move to sup-

press unlawful Title III evidence before the grand jury.”

The Third Circuit distinguished between moving to

quash a subpoena to obtain allegedly illegally recorded

conversations and moving to suppress the evidence once

it is in the hands of the government. The evidence here is

in the hands of the government. It is in the hands of the

Court, [p. 118] for that matter. And for all the reasons |

have cited before, if you do reconsider the admissibility

A26

of these tapes, rule as you already have that they are

admissible.

MR. BENDURE: Your Honor, one thing should

be pointed out. Mr. Sobel has spoken to Section 2518. We

are relying on 2515. That is the exclusionary statute

which is discussed at Pages 1077 and 1078 which

includes, and liberal or not, Gelbard which is the last word

of the United states Supreme Court on this.

Then, moreover, the last word of the Federal circuits

is in our favor. So this isn’t some old liberal b-s, this is

Federal law. It is controlling.

THE COURT: It is Federal law but not in this

circuit.

MR. BENDURE: The United States Supreme

Court, your Honor, I think -

THE COURT: I'm talking about the First and

Third Circuits. I have a terrible time keeping the circuits

straight. I know that we are in the Sixth Circuit.

MR. BENDURE: Right, and we are defined def-

erence to the Sixth Circuit as where there are state law

claims that are involved on the theory that they have a

better recognition of Michigan law.

But this is an issue of pure Federal law and, there-

fore, whether you look at the statutory language, the

sentiment behind Gelbard, or the majority view, the first

view, or the [p. 119] most recent view, they all come out

the same way which, of course, is to say nothing about

the Michigan eavesdropping statute which was inter-

preted in the Dickerson case so as to create a civil cause of

A27

action against Sally Jessy Raphael for obtaining this if we

want to look for a little local -

THE COURT: - color. I was wondering if we

would ever get to that case, Sally Jessy Raphael. I was

hopeful that we could get through this hearing without

referring to that.

It is certainly clear that the only two consistent deci-

sions in this circuit are decisions that basically hold that if

surveillance tapes of this type come into the hands of the

government agency they can be introduced in evidence

regardless as to whether they were legally or illegally

obtained. That is the holding of the Sixth Circuit. And

while it may be a troubling holding in some instances, it

is the law of this circuit and I am not going to rule

against

it.

But incorporated with the ruling is this notion, and

that is we have an obligation to seek the truth in a case of

this nature; in other words, a formal complaint against a

sitting judge in this state. And the case law that applies

clearly applies in this court in this circuit unless I can find

a compelling reason to rule against it.

And it seems to me that the government fell into

these tapes, the government in the form of the Judicial

Tenure [p. 120] Commission did not solicit these tapes,

and I think the government cannot ignore this informa-

tion that was used to form a basis of this formal com-

plaint, and I will not reverse my ruling.

I apologize if it was not clear last week, but I have

now read everything that you have submitted to me and

my ruling will stand.

A28

Now I think we have to proceed. It is a quarter of

3:00.

MR. BENDURE: Your Honor -

THE COURT: You have made all your points,

Mr. Bendure, and [ am not going to reverse myself.

MR. BENDURE: I understand, but I would like

the record to reflect that we haven't been able to offer

virtually a shred of evidence regarding this issue what

the ruling is. You are assuming it fell into the govern-

ment’s hands. I am prepared to prove that they subpoe-

naed these tapes, your Honor, that they subpoenaed

them, and if that is not obtaining it by government coer-

cion and process, what is?

THE COURT: Well, Mr. Bendure, curiously

enough, there was no motion to quash the subpoena, but

I think the tapes were subpoenaed to be made -

Was there a subpoena issued, Mr. Sobel to get the

tapes into your shop in the first place so Mr. Bendure

could make copies or was that simply at a request. I know

they were [p. 121] subpoenaed to be here today.

MR. SOBEL: I think the interesting thing, and

the record should reflect this insofar as it may support

your decision, is that at one point in time in these pro-

ceedings when Mr. Bendure wanted to have the tapes

examined by an expert on behalf of Judge Ferrara, he

encouraged the Master to order that the Commission

subpoena the tapes, or at least arrange to have the tapes

produced at the Offices of the Commission so that his

expert could make copies and examine those tapes. That

seems to me to be totally inconsistent with his argument

A29

here today that somehow we did something wrongfully

in securing these tapes before the hearing.

MR. BENDURE: | just_think it is premature to

decide how it came into the s0overnment’s hands before

we have got any evidence.

THE COURT: Well, the whole thing in Murdock

is that it doesn’t matter whether it was legally or illegally

seized and so, in that sense, it does not matter.

MR. BENDURE: Well, then, your Honor, will

the Court at least follow the United States Supreme Court

in Gelbard if my client refuses to answer?

THE COURT: This isn’t a criminal proceeding.

This is a civil proceeding.

MR. BENDURE: | understand, your Honor.

What I am suggesting is when a statute Says “any

agency” that a judge [p. 122] is at least entitled to the

same protection as a criminal. They are no less worthy of

the statutory protection and they are no less covered by

the explicit language of the statute.

THE COURT: Why would any witness in a civil

proceeding - If a witness were to refuse to answer a

question, Mr. Bendure - I don’t want to use Judge Ferrara

as an example — but there isn’t an allegation or shred of

evidence that I am aware of that there is any criminal

responsibility associated with these proceedings. When

you refuse to answer a question under the constitution is

when the answer would tend to incriminate you, and

“incriminate you” is a word that is used in the context of

criminal charges. What criminal charge are you talking

about?

A30

MR. BENDURE: Judge, if you look at the Gel-

bard decision —

THE COURT: That was a criminal case.

MR. BENDURE: It was a contempt for refusal

to answer a question case.

THE COURT: It was a criminal contempt.

MR. BENDURE: The United States Supreme

Court said a person is lawfully entitled to refuse to

answer a question based upon evidence obtained in viola-

tion of this act. Now that distinction can be drawn by -

THE COURT: When the evidence obtained in

the violation of that act is going to be used in a criminal

prosecution [p. 123] against the witness.

MR. BENDURE: That certainly doesn’t say that

in Gelbard, your Honor. The conclusion of 2515 -

THE COURT: Sometimes the obvious doesn’t

have to be stated.

MR. BENDURE: It is an available defense to a

contempt charge. It says that a witness can refuse to

answer. Now if we are going to draw that distinction, I

suggest that my client is entitled to refuse to answer and

that you are at least obligated to follow the United States

Supreme Court decision on that point in Gelbard.

THE COURT: Mr. Sobel?

MR. SOBEL: I guess if Mr. Bendure is request-

ing that the Court allow Judge Ferrara to refuse answer

questions relating to the tapes I guess I am wondering

A31

what he views as an appropriate sanction for that assum-

ing that she can avoid answering questions here today

under oath. is it that she can avoid questions -

THE COURT: Before you say anything else, I

would like to say that I have not heard a shred of evi-

dence or testimony before me. There is some question as

to whether a 28-day letter was answered. Someone

thought that it wasn’t and Judge Ferrara thought that it

was, but there has been nothing on this record that would

indicate to me that Judge Ferrara has not fully cooper-

ated. She was described by Dr. Luby as [p. 124] having

fully cooperated with him in his evaluation and she has

answered ever [sic] question that she was asked before

me.

So before you proceed, and I didn’t mean to interrupt

your line of thought, Mr. Sobel, but as of this point I have,

if any, extremely limited evidence before me that would

indicate that there has been lack of cooperation by Judge

Ferrara. Now, continue.

MR. SOBEL: I won’t acknowledge that that is

the case, but -

THE COURT: | understand that.

MR. SOBEL: - but I am not going to belabor it

because I don’t think it is significant at this point. What I

would point out is that this is a judicial disciplinary

proceeding and that Judge Ferrara has an obligation to

cooperate in the search for truth.

THE COURT: I think so.

MR. SOBEL: That she cannot refuse to answer

questions unless there is some recognized privilege; that

A32

the privilege that Mr. Bendure suggests applies doesn’t

apply if you adopt the rule of law of Murdock which says

that there is a silver platter exception to the exclusionary

rule that once the tapes are admitted she certainly can be

questioned about those tapes. And if she refuses to

answer it seems to me that the appropriate remedy is for

the Court to find her in default, for the Master to find her

in default, to find that [p. 125] all of the claims asserted

by the Commission have conclusively established and to

pass the matter forward to the Commission.

I don’t think it is appropriate for Judge Ferrara to

pick and choose what evidence is going to come into this

proceeding. To shield the truth by refusing to testify on

the one hand and then presumably volunteering informa-

tion that she thinks is favorable to her on the other hand,

that is unacceptable.

THE COURT: I agree, Mr. Sobel.

* * +

A33

Trial Proceeding - 10/3/97

Refusal To Answer Question

* * *

[p- 145] Q Do you recall hearing the following

exchange on that tape recording:

An adult female voice saying. “You are probably part

black.”

A male voice then saying: “Huh?”

[p. 146] The female voice then saying: “You're proba-

bly part black.”

The male then laughing.

The female then saying: “You are. I think you are. |

think you got nigger blood in you.”

The male then saying: “Oh, who knows? Maybe you

are right.”

The female then Saying: “I think you really do. I

think -”

The male: “Hey, maybe I do. Maybe I do. Maybe

there is some Sicilian blood in the background. Who

knows?”

And then the female saying: “I know there is, and

that’s nigger.”

Do you remember hearing that exchange?

MR. BENDURE: I object, your Honor, on the

basis that it is evidence derived from the tapes which we

submit were illegally obtained and have not yet been

authenticated.

A34

THE COURT: I understand, Mr. Bendure, that

that is your continuing objection.

A I respectfully decline to answer that question on

the basis of my privacy rights under Federal law 18 USC

2515, 18 USC 2511, Sub (1) and Sub (2)(d) and the Gelbard

v. United States decision cited at 408 US 41, 92 Supreme

Court 2357, 33 L.Ed.2nd 179, 1972, under the U.S.

Supreme Court.

Q (By Mr. Sobel, continuing): I hear your refusal to

answer, [p. 147] and I hear the reasons you have given for

that refusal. I just want to make sure that you are clear on

what I am asking you. And | am simply asking you at this

point if you heard that portion of the tape recording that

was played here today in open court?

A I refuse to answer any questions on the basis of

the use of those tapes for the reasons cited on the record.

* * +

A35

Trial Proceedings - 10/3/97

Refusal To Answer Question, Contempt Finding

* * *

[p. 154] Q Iam going to give you another oppor-

tunity to answer the following question: Did you hear,

Judge Ferrara, this afternoon as we played Segment 6 to

its conclusion — at least as to what is on the video tape -

the following exchange: An adult female voice: “You are

probably part black.”

A male voice: “Huh?”

A female voice: “You're probably part black.”

The male then laughing.

The female: “You are. I think you are. I think

you got nigger blood in you.”

The male: “Oh, who knows? Maybe you’re

right.”

The female: “I think you really do. I thing ~”

The male: “Hey, maybe I do. Maybe I do. Maybe

there’s [p. 155] some Sicilian blood in the background.

Who knows?”

The female: “I know there is, and that’s nigger.”

Do you remember hearing that exchange as we

played the balance of Segment 6 today in open court?

A I decline to answer any question on the basis of

those tapes.

MR. SOBEL: Your Honor, at this time on behalf

of the Commission I move that you find Judge Ferrara in

A36

contempt. I move that you strike her answer to the

Amended Formal Complaint, and I move that you enter

her default.

THE COURT: What are you basing this on, Mr.

Sobel? The court rule says that her failure to answer may

be considered as an evidentiary fact. | am short circuiting

what the rule says. This is 9.211(B). I don’t believe you

would be entitled to a default at this point.

MR. SOBEL: I believe that I am entitled to a

default because her failure to answer is a failure to pro-

duce evidence in this proceeding. Where it says failure to

appear, it refers to respondent's failure to answer.

THE COURT: It says failure to answer or to

appear at the hearings.

MR. SOBEL: Right. That failure to answer is not

referring to answering questions at the hearing; it is

referring to the failure to answer the Complaint. In other

words, if a respondent judge fails to answer the Com-

plaint or appear at the hearing.

[p. 156] THE COURT: No, it says to testify in

his or her own behalf.

MR. SOBEL: Right, but we are not talking about

a situation where the Respondent is failing to testify in

his or her own behalf, we are talking about a situation

where the respondent judge is failing to provide evidence

when called as a witness by the Commission. What this

rule that you are focusing in on essentially says is, look, if

a respondent is charged with judicial misconduct, fails to

answer the Commission’s Complaint, fails to appear at

the hearing, fails to testify on his or her own behalf, that

ictal dN ta ie ie See

A37

standing alone does not establish the grounds alleged, the

acts of judicial misconduct alleged in the Complaint. The

Commission must go forward independently and estab-

lish the judicial misconduct that it has alleged in the

Complaint.

That is what that rule is all about. That rule has

nothing to do with the situation that is now before you,

your Honor, in which the Judge has been called as a

witness by the Commission and refuses to give evidence,

and I believe that you have instructed her to answer.

THE COURT: I have not ordered her to answer.

MR. SOBEL: Then I would ask that you order

her to answer, and if she refuses to answer that you find

her in contempt, strike the pleadings she filed to the

Amended Formal Complaint, and you enter her default.

[p. 157) THE COURT: Mr. Bendure, do you

have any thoughts?

MR. BENDURE: Obviously, we oppose all of

those requests, your Honor. She has filed an answer. She

has appeared. She has invoked rights which we submit

are provided to her by Federal law.

THE COURT: Judge Ferrara, | recognize that

you have a significant objection. Indeed, I understand the

reasons for the objection relative to the admissibility of

these tapes in this hearing. And I have tried in every way

possible to make it obvious that the legal question upon

which I ruled is one that is the subject of a continuing

objection by you and your attorney on your behalf. I have

never for a minute failed to recognize that this would

unquestionably be a matter of continued litigation; in

A38

other words, my ruling was going to be appealed by no

matter what way I ruled. That has always been clear to

me.

I find myself in the awkward and unfortunate posi-

tion of having to order you to answer this question. |

believe that the hearing so far has been conducted mind-

ful of your continuing objections, but I also am obliged to

tell you that the sanctions for failure to answer are

serious, and I think you know that as well. With this, I

order you to answer.

THE WITNESS: Well, your Honor, I am not try-

ing to be difficult and I am not trying to be uncoopera-

tive; | am merely asserting my Constitutional rights, and I

think that I [p. 158] am entitled to the same Constitu-

tional rights as any other citizen of the United States, and

I don’t think that anywhere in the Constitution that I

have read that the Constitution applies to every U.S.

citizen in the United States except for judges.

I'm sorry but I have to respectfully decline to answer

any questions on the basis of my privacy rights under

Federal law 18 USC 2515 and 18 USC 2511, Sub (1) and

Sub (2)(d) and the Gelbard v. U.S. decision at 408 US 41 in

the Supreme Court. And it is very clear that my privacy

rights are being violated by this very process, by these

series of questions, and I absolutely refuse to answer

them, and whatever you have to do, you have to do.

THE COURT: You asked for an Order of Con-

tempt. Mr. Sobel?

MR. SOBEL: I ask for an Order of Contempt

that the Respondent Iudge’s Answer to the Amended

EEEEERneenen

an pha ea Shae ia ica

A39

Formal Complaint be stricken and that a default be

entered.

MR. BENDURE: I submit, your Honor, that

under the Gelbard case —

THE COURT: We have heard enough about that

Case

MR. BENDURE: Fine. If you won't entertain my

objection, fine.

THE COURT: Why don’t you all come into the

office before I rule.

[p. 159] You may step down.

(Proceedings in recess at about 4:04 p.m. proceedings

resumed at about 4:22 p.m.)

THE COURT: All right, where we are right now

is this:

Mr. Sobel, if I did not indicate so before the recess, I

am compelled to grant your motion for the contempt, and

you may prepare an Order of Contempt. We will set this

for a hearing at 9:00 a.m., next Thursday, October 9th, on

the appropriate sanctions.

No. 2, the striking of the Respondent's pleadings and

the entry of a default is unique, I think, in the annals of

Tenure Commission proceedings, and in view of its

uniqueness, I am going to ask for memoranda from you

and Mr. Bendure to be provided by the close of the

business day, and why don’t we say that is 4:30, Tuesday,

October 7th. I will be hearing a jury trial in Clarkston on

that date so I know that I will be out there until 4:30, and

A40

as been done in the past, you are more than welcome to

submit this by FAX.

If a default is entered, whether it is or isn’t, Mr.

Sobel, I anticipate that we will resume testimony between

10:00 and 10:30 Thursday morning.

* * *

A4l1

Trial Proceedings ~ 10/9/97

Contempt Finding and Preclusion Ruling

” * *

[p. 24] MR. BENDURE: Could I ask you to read

the Vest opinion which declined to create a perjury excep-

tion.

THE COURT: |] have read it.

I am going to try and address these issues in an

orderly fashion, and I am not certain that the order that |

address them in now will be as coherent in my view

tomorrow or the next day. In other words, I am going to

try and address everything that has been raised.

No. 1, I am going to strike the document that was

filed yesterday. This is the motion for rehearing on my

ruling admitting evidence and derivative evidence, the

document that was hand-delivered to me and the Com-

mission yesterday.

It is just inappropriate at this Stage of the [p. 25]

Proceedings and I am not certain that it allowed under

the court rule.

As to the privilege regarding the invasion of privacy,

the difference between the assertion of the privilege on

Friday and the failure to assert it last Monday, the 29th,

was the admissibility of the tapes, and my recollection is

that I denied the motion for an evidentiary hearing on the

acquisition of the tapes before Judge Ferrara testified.

That motion had been filed before the hearing started and

| acknowledged that there was a continuing objection to

the admissibility of the tapes entered by the Respondent

throughout the course of this hearing. But the motion

A42

seeking an evidentiary hearing on the recording of the

tapes had been denied.

It is clear that the Federal Wiretap statute does allow

the invocation of its provision as a defense to a contempt

citation and that is the Gelbard decision of the United

States Supreme Court. In the context of this particular

case, I have read the Gelbard decision, and the Gelbard

decision, and I can’t quote from it right now, but there is

a passage in the Gelbard decision that talks about the

narrow issue that the court was considering, and that

narrow issue was relative to asserting the privilege as a

defense to a contempt citation and the proceedings that

were involved were grand jury proceedings looking into

potential criminal [p. 26] conduct.

This is not and this has never been by any view that I

can conceive of as a criminal proceeding. This is a civil

proceeding. The court rule established by the Supreme

Court relative to hearings before the Judicial Tenure

Commission clearly indicates that this is a civil proceed-

ing and not a criminal one. There is nothing in this

Complaint that I can see, the Complaint filed by the

Commission, that alleges criminal conduct by Judge Fer-

rara. None of the allegations here relate to criminal con-

duct by the Respondent.

In the cases that I have read that relate to proceed-

ings before the Judicial Tenure Commission and cases

that have been referred to me that I have not read - I

must confess there is a Rhode Island case that I have not

read — but the cases that I have read trom the Court of

Appeals and the Michigan Supreme Court, the opinions

that | have read —- and When I scar hataiade I guess I am

A43

referring to the opinion produces by the Judicial Tenure

Commission itself in connection with Complaint No. 33

which was a decision relative to that Complaint which

did address the question of a respondent’s refusal to take

the stand as a witness after being told by the Master that

he was legally obligated to do so.

1 have read all of these and one thread that runs

through Tenure Commission proceedings is almost a

demand that [p. 27] the respondent testify, and the

demand in a sense is because of the concern that the Bar

has, the Commission has, and the Supreme Court has in

conduct relative to the administration of justice, and that

in essence the failure to testify can be conduct prejudicial

to the administration of justice and thereby related to

misconduct in office.

Without tipping the wink, Mr. Sobel, it seems to me

that the refusal of the Judge to testify on Friday does

form a basis for a count based on evidence presenting at

the hearing for judicial misconduct, and if it is your view

that a count should be added, I will allow you to do so.

I want to talk about the privilege that was asserted,

the right of privacy. I will be the last person to say that

we do not have privacy rights. I will be the last person to

say that we do not have First Amendment rights. But it

seems to me that when an individual assumes the respon-

sibility of judicial office and swears to uphold the Consti-

tution and laws of the State of Michigan, and by inference

the Canons of Judicial Conduct, there is an implicit will-

ingness to do so.

Any reading of the Canons of Judicial Conduct must

produce the conclusion that First Amendment rights -of

A44

judicial officers are circumscribed, and I think we all

recognize that First Amendment rights can be circum-

scribed. I think it was Justice Holmes who raised the

example of fire in a crowded theater.

[p. 28] By inference then, knowing that the First

Amendment rights that we all have is not absolute and

that by assuming judicial office individuals accept will-

ingly additional circumscription, circumscribing of First

Amendment rights. It logically seems to follow that pri-

vacy rights may also be circumscribed in the context of

judicial service.

There is an interesting question unanswered in the

Gelbard case and that is what the impact on civil proceed-

ings are because the grand jury proceedings were by

definition criminal proceedings, and then farther on the

question as to if there is an absolute right to privacy

created in the Federal wiretap statute, whether that abso-

lute right goes to the privacy rights asserted by a judge in

a civil proceeding relative to that judge’s alleged miscon-

duct.

If there were ever an exception that could be clearly

carved out of the privacy rights, I think this is it. In the

context of this case, it is clear that there is an attempt to

have cake and eat it, and that is in essence the argument.

In essence, I am adopting the arguments that Mr. Sobel

raised relative to public statements by the Respondent

both in terms of the print media and the television media

and on the one hand you cannot say outside of court one

thing and then assert a privilege which may not exist

inside of court.

A45

Relative to the waiver of the privilege, the admis-

sibility of evidence has never been held to justify a [p. 29]

resurgence of a waiver of the privilege. In other words, if

the privilege was to have been asserted in the context of

this hearing, the privilege asserted on Friday afternoon

by Judge Ferrara should have been asserted on the record

before the hearing started and we might have been hav-

ing a hearing on this issue on Monday instead of on

Friday if questions relative to the tape were refused to be

answered. And I know of no testimonial privilege relative

to privacy other than the one that the Supreme Court and

Congress seem to have created in the context of wiretap-

ping for ciiminal proceedings.

Now I wish to also say that there is a major distinc-

tion in most of the decisions and the decisions that deal

with issues relating in criminal proceedings. It is clear to

me that had these tapes been made under any authority,

any governmental authority, the factors tha’ 1 would have

to consider might be different, but these tapes were not

made under color of governmental authority and these

tapes have never been used in anything that I know of

other than these proceedings here. And so I reject the

argument that there was a legitimate invocation of a

privilege on Friday afternoon in the context of any rul-

ings that I had made during the course of the hearing.

And I will not reverse my finding that the Judge was

in contempt at that time, but as I said earlier this morn-

ing, [p. 30] this is a civil contempt, not a criminal con-

tempt. I will reserve ruling on all the sanctions for this

contempt but this contempt cannot go unsanctioned. The

question that was not answered on Friday was, I believe,

a question relating to a telephone number.

A46

Is that correct, Mr. Sobel?

MR. SOBEL: No, your Honor.

THE COURT: Was this the generalized question -

Judge Ferrara, I did assert without being ordered to

do so a privilege relative to that question, but I think the

last question -

Was the last question a generic question relative to

answers about the tapes?

MR. SOBEL: Your Honor, as I recall the circum-

stances, we had played the segment of the tape-recorded

conversations known as Segment 6, and my question to

Judge Ferrara after that tape-recorded conversation was

played was whether during the playing of that tape-

recorded conversation she heard a certain exchange, and I

read to her what the exchange consisted of, and it was in

response to a question along those lines that she asserted

the right not to answer the question.

THE COURT: Right.

Because of the higher standard that judges are held

to. I believe an argument can be made that jail isn’t an [p.

31] appropriate sanction, and I reject that argument. I am

not going to do that in the context of this hearing, but I

do believe also that entering a full default is inappropri-

ate in the context of this hearing because it seems — There

is no question in my mind that regardless of what the

ruling I make is relative to this contempt, the Examiner

still has an obligation to prove his case, and the default is

fiction.

A47

On the other hand, it does seem that there has to be

an appropriate sanction, and the sanction is that what

will be stricken from this hearing will be any pleadings

that the Respondent has made relative to the tape-

recorded statements, and I will deny her the right and

Opportunity to present evidence relating to the tape-

recorded statements.

I believe I had set to rest the question of an evidenti-

ary hearing earlier on in these proceedings.

* * *

A48

STATE OF MICHIGAN

BEFORE THE MICHIGAN JUDICIAL

TENURE COMMISSION

COMPLAINT AGAINST:

HON. ANDREA J. FERRARA FORMAL

Judge, 3rd Circuit Court COMPLAINT

Detroit, Michigan 48226 NO. 52

ORDER IMPOSING CONTEMPT SANCTIONS

On October 3, 1997, Respondent Judge Andrea J.

Ferrara was found in contempt. An order was signed on

October 6, 1997, scheduling a hearing on the sanctions to

be imposed for Respondent Judge Andrea J. Ferrara’s

contempt for Thursday, October 9, 1997. The Examiner

and counsel for Respondent Judge Andrea J. Ferrara filed

Briefs addressing the issues. After considering the

records and files herein, including the Briefs filed by the

Examiner and counsel for Respondent, and the argu-

ments of counsel at the time of the hearing on contempt

sanctions, being fully advised, for the reasons stated on

the record at the time of said hearing,

IT IS HEREBY ORDERED as follows:

1. Those portions of Respondent Judge Andrea J.

Ferrar’s Answer to the First Amended Complaint relating

to her alleged tape recorded statements are stricken; and

2. Respondent shall not present evidence during the

hearing relating to the alleged tape recorded statements.

A49

THIS ORDER has been signed on this 14th day of

October, 1997,

/s/ Vesta Svenson

HON. VESTA SVENSSON,

MASTER |

Approved as to Form:

/s/ Allan D. Sobel /s/ Mark R. Bendure

Allan D. Sobel by ads per consent

(P 40872) 10/13/97

Examiner Mark R. Bendure

(P 23490)

Attorney for

Respondent

Judge Ferrara

A50

STATE OF MICHIGAN

THE MICHIGAN JUDICIAL TENURE COMMISSION

COMPLAINT AGAINST:

HON. ANDREA J. FERRARA Formal

Judge, Third Circuit Court Complaint

Detroit, Michigan No. 52

REPORT OF MASTER

This report is issued pursuant to the June 11, 1997,

Michigan Supreme Court order appointing Vesta Svenson

as Master to hear formal complaint no. 52 against Hon.

Andrea J. Ferrara. It is divided into two parts: (1) pro-

cedural history and (2) findings of fact and conclusions of

law. By necessity, the procedural history includes some

legal decisions which affected the conduct of the formal

hearing.

Procedural history

During the effective time of the above order, the

Master was sitting regularly as a Visiting Judge at the

52-2 District court, Clarkston, Michigan. The parties

agreed to that location for preliminary matters requiring

court appearances. Some preliminary issues were capable

of resolution via telephone conference calls. Ultimately,

the hearing was held at the 34th District court, Romulus,

Michigan on: September 29 and 30; October 1, 3, 9, 10, 27;

and November 5 and 6, 1997. A final evidentiary ruling

was deferred on Exhibit 49a pending review by Respon-

dent and submission of the parties’ memoranda of law.

Closing arguments were submitted in writing by the par-

ties on December 1, 1997.

lla

A51

At the June 17, 1997, prehearing conference, motions

were scheduled for filing by July 16, answers by August

8, and oral argument on August 21. Witness lists were to

be exchanged by August 8. The formal hearing was

scheduled for September 29 and 30.

On June 20, the Examiner moved for mental examina-

tion of Respondent pursuant to MCR 9.207(G). This

motion was resolved by telephonic conference on July 15

and set forth in the order of July 22, 1997.

There were two motions orally argued on August 21:

(1) Respondent's motion to dismiss or strike nonconform-

ing pleadings and (2) Examiner’s motion to amend for-

mal complaint. Respondent’s motion was denied and

Examiner’s motion was granted. Oral motions, requests,

and. scheduling matters were argued and discussed on

August 21. The results are set forth in the order of Sep-

tember 3, 1997.

The Examiner’s witness list was timely filed and,

although late, Respondent’s witness list was allowed

after filing on August 29. Before and throughout the

hearing amendments, modifications, and adjustments to

witness lists were liberally granted in the interest of

fairness to all parties. During the formal hearing, the

Examiner called eight witnesses, among them the

Respondent. The Respondent called twenty-two wit-

nesses, including Respondent.

Included on Respondent's original witness list was

David Ashenfelter, a reporter for the Detroit Free Press.

Upon receipt of a subpoena to testify, Ashenfelter’s attor-

ney moved for a protective order and motion to quash

subpoena. An ancillary hearing was held on this motion

EEE NE

A52

on September 30 and the motion was granted (T., vol. IL,

p. 83-93) and an appropriate order entered October 9,

1997.

A continuing celluloid thread throughout this inquiry

is a series of tape-recorded telephone conversations

between Respondent and her ex-husband, Howard Tar-

jeft. The recordings were made without Respondent's

knowledge or consent. The Tarjeft tapes were brought,

unasked for, to the Judicial Tenure Commission offices

and are the basis of the formai complaint (before amend-

ments). The tapes, held in the custody of Tarjeft, were

copied and reviewed by Respondent’s counsel. The pro-

cedure for this review was established in a July 23 tele-

phone conference and set forth in the order entered July

28, 1997.

At every opportunity before and during the hearing,

Respondent sought to have the tapes suppressed. The

transcripts and pleadings are replete with arguments

regarding admissibly.

Of concern to all, including the Master, is the privacy

right normally associated with telephone conversations.

Respondent's motion to dismiss, trial brief, supplemental

trial brief, and motion for evidentiary hearing address the

issue. So also do the Examiner’s responses and hearing

memorandum. After review of the pleadings, case law,

and Respondent's motion for an evidentiary hearing

regarding the making of the tapes and the purpose for

which they were made, the Examiner’s arguments proved

persuasive and the tapes were admitted and no evidenti-

ary hearing held (T., vol. Ill, p. 60).

EP De ee

Ode RAS et

ws 6 a

tS. a ea

A53

Once the tapes were admitted and after easwering

earlier questions based upon the recordings, Kespondent

refused to answer further questions. She asserted privacy

rights under 18 USC §2515 (federal eavesdropping stat-

ute) and Gelbard v. United States, 408 US 41; 92 S Ct 2357:

33 L Ed 2d 179 (1972) In support of this refusal (T., vol. IV,

p. 146-147). Eavesdropping in Gelbard was pursuant to

federal court order, conducted by federal agents, and

involved third parties. The third parties were allowed to

assert invasion of privacy rights when they refused to

testify before a grand jury. Here, conversations were

taped by a party to them, not done under color of govern-

mental authority, and given, unasked for, to the Judicial

Tenure Commission. See particularly, United States v. Mur-

dock, 63 F3d 1391 (6th Cir. 1995), where, as here, the

government had no part in an unlawful interception

(Examiner’s hearing memorandum, p. 15-17, and addi-

tional colloquy during the formal hearing, (T., vol. IV, p.

103-120). The Examiner’s motion for contempt was

granted and an order scheduling hearing on contempt

sanctions entered October 6, 1997.

Additional memoranda were filed by the parties and

argued on October 9. The Examiner’s request for a

default was denied, Respondent’s pleadings relative to

tape-recorded statements were stricken, and Respondent

was precluded from presenting evidence regarding the

taperecorded statements. Respondent was also advised

that the contempt could be purged by answering Exam-

iner’s questions relative to the tapes (T., vol. v. p. 6-32).

At the close of the morning session on October 10,

the Examiner rested. Respondent was advised that a

motion for a directed verdict was inappropriate and

A54

would not be heard. Upon resumption after the lunch

break, Respondent had no witnesses present who she

wished to call. Respondent was sanctioned for delay of

proceedings and assessed $200 in costs (T., vol. VI, p.

80-85).

On two occasions during the hearing, testimony was

adduced which prompted the Examiner to seek addi-

tional amendments to the formal complaint pursuant to

MCR 9.214 (T., vol. v. p. 35-36; vol. VIL, p. 105-107). The

amendments were allowed, second amended and third

amended complaints were filed, and answers received

from Respondent.

On the last day of testimony, November 6, 1997, the

Examiner sought te impeach Respondent's testimony by

use of a previously unknown tape recording of a 1989

telephone conversation with her former brother-in-law.

The parties agreed to file memoranda of law, discuss a

possible stipulation after Respondent listened to the tape,

and await a ruling on admissibility after the testimonial

phase of the hearing closed. After review of the mem-

oranda and stipulation, the tapes were admitted for

impeachment purposes only.

Lastly, before resting, the Examiner withdrew, with-

out objection, paragraphs 13a and 13b of the first

amended complaint (T., vol. VI, p. 78).

Findings of fact and conclusions of law

After opening statements on September 29, 1997,

Respondent herself was the first witness called by the

Examiner.

A55

On the basis of her testimony, I find Respondent has

served as a judge in the Third Judicial Circuit since

January 1, 1993. She had been a 33rd District Court judge

from January 1981 thought [sic] December 31, 1986. In a

letter to Hon. Joan Young dated February 2, 1997,

Respondent expressed willingness to sit as a visiting

judge (Exhibit 16). From January 1, 1987, through Decem-

ber 31, 992 [sic],Respondent had intermittent assign-

ments, principally in the 19th and 36th District Courts.

This testimony proves the allegations of paragraph 2 in

the second amended complaint.

On May 12, 1992, Respondent signed and filed a

Statement of Organization for Candidate Committee (see

Exhibit 1 and T., vol. I p. 36-40).

Thus, at all times relevant to this inquiry, Respondent

has been bound by the Michigan Code of Judicial Con-

duct.

Much of the time during Respondent's testimony on

September 29, the Examiner played tape recordings, por-

tions of tape recordings, and one audio-visual recording

of a television newscast. At intervals, playing was

stopped and Respondent questioned. Several] times

Respondent indicated the female voice either sounded

like her or appeared to be her voice (T., vol. L, p. 63, 74,

108, and 112, e.g.). In one instance, she did not recognize

her voice (T., vol. I, p. 98). Responding to a questions [sic]

regarding use of the work “niggertown,” Respondent's

answer — “It is a poor choice of words. Poor judgment” -—

is a tacit acknowledgment of the voice as her own (T., vol.

I, p. 86). Not all of the tapes were played in open court,

nor were those played all played in their entirety.

A56

Ted Russell Lewis was called by the Examiner on

October 3, 1997. His expertise in the field of forensic

audio and video tape analysis was stipulated to by

Respondent (T., vol. IV, p. 14; see also Exhibit 36, Lewis

vita summary). Lewis listened to every conversation

recorded on the tapes from beginning to end. Except for

the voice of one minor female, appearing once, the tapes

contained only one adult male voice (Howard Tarjeft) and

one adult female voice (T., vol. IV, p. 30).

On March 20, 1997, Respondent filed a complaint in

federal court against the Detroit Free Press, Inc., David

Ashenfelter, and Howard Tarjeft. In paragraph 11 of this

complaint, Respondent acknowledges having telephone

conversations with Howard Tarjeft who recorded them.

This complaint was verified by Respondent, under oath,

on March 19, 1997 (Exhibit 6). The tapes referred to in the

federal complaint are from the same source as those

introduced in this hearing.

The evidence that Respondent made the statements

attributed to her in the formal complaint is overwhelming

and I find it to be true. The allegations in paragraphs 1

through 9, 11, 12, and 16, of the first amended complaint

are amply proven.

When asked by the Examiner whether she had heard

the tapes, Respondent avoided direct answers, creating

an ambiguous impression (See, e.g., T., vol. 1, p. 55-57). In

February 1997, at the televised news conference, she

unambiguously stated: “These tapes are a fake. I have

listened to the tapes and that is not my voice contained

on the tapes.” See Exhibit 4 which includes a televised

clip of another conference where attorney Lawrence

A57

Stockler, acting for Respondent who was present, said he

didn’t care whether her taped statements were true or not

(see also, T. vol. I, p. 149-156).

The above prove the allegations in paragraphs 15 and

17 of the first amended complaint.

A cumulative effect of the proven allegations in para-

graphs 15 through 17, all public statements, is proof of

the public misrepresentation alleged in paragraph 18 of

the first amended complaint.

Dissemination of the tapes to the Detroit Free Press

produced a flurry of publicity (T., vol. I, p. 128-132;

Exhibits 4 and 8a). Chief Judge James J. Rashid was

compelled to issue a press release (Exhibit 14A) as well as

publicly comment on the situation because of his concern

about the public perception of the judiciary (Exhibit 4).

Judge Rashid received 24 letters, some addressed to him

and some copies of letters to the Judicial Tenure Commis-

sion, all from the public (Exhibit 14). Although I have not

read these letters, their existence indicates public atten-

tion. (see T., vol. II, p. 99-112). The presence of media

representatives throughout the formal hearing demon-

strates continuing widespread public interest in the

inquiry. It cannot be seriously rgued that the effect of the

coverage promotes a positive public attitude toward the

judiciary. Respondent's active participation initially can

only have contributed to a negative public image.

The allegations of paragraph 20 in the first amended

complaint are proved.

Respondent's relationship with her ex-husband, even

now more than ten years after their divorce, makes “The

A58

War of the Roses” seem more like a bed of roses in

comparison. She has asserted she “doesn’t talk like that”,

and, for example, the use of the word “nigger” is “appall-

ing” to her (T., vol. I, p. 75). She has argued these and the

other words are more reflective of her deep-seated anger

toward Howard Tarjeft than of a personal racist view-

point.

At this point, the testimony of Dr. Elliot D. Luby

becomes relevant. Dr. Luby conducted the mental evalua-

tion of Respondent requested by the Examiner. Dr. Luby

has been licensed to practice medicine in Michigan since

1952 and has limited his practice to psychiatry since 1954.

His experience is broad and his credentials extensive. Dr.

Luby spoke with Respondent for approximately an hour

and a half. In addition, Respondent took the Minnesota

Multiphasic Personality Inventory (MMPI), a test which

Dr. Luby used to confirm the [sic] disconfirm his clinical

impressions (T., vol. IIL, p. 14-26). Dr. Luby’s testimony

was most enlightening and should be reviewed in toto.

Dr. Luby noted “a suggestion of a pervasive paranoia

in which she [Respondent] felt that various forces and

people were determined to destroy her career and possi-

bly her as well.” (T. vol. IIL, p. 34.) On cross examination,

Dr. Luby acknowledged that facts not available to him

could certainly justify Respondent's feeling. He did not

find she suffered from a major mental illness which

would impair her judgment to the point of making the

statements alleged in the formal complaint. When he

raised this subject, Respondent was dismissive or

avoided answering. (T., vol. III, p. 27). Dr. Luby deter-

mined Respondent had legitimate anger stemming from

the terrible relationship with her ex-husband, and also

te tet ee re

ELEN PEIN AE IPOS IR iis AGE: OPES STD WE TS cans Mok BL

A59

that she was not controlled by him. While recognizing his

ultimate conclusion could be affected by more informa-

tion, Dr. Luby did note the clinical impressions he had of

Respondent were essentially confirmed by the MMPI.

Dr. Luby described a mental mechanism known as

“projection” which “means attributing to other people all

the deficits, failures, and impulses which we disown.”

“Judge Ferrara seemed to blame everyone else but herself

for the various problems in her life... . ” (T., vol. IIL, p.

30). The significance of this projection is that the lan-

guage of an angry response may be inappropriate to the

source of the anger.

The testimony of Christopher Tarjeft, Respondent's

14 year-old son, reflects the acrimony between his par-

ents. The boy and his twin brother have resided with

their father since early 1997. He obviously did not wish to

appear disloyal to his father while testifying.

Dee Curtis, a friend to Respondent and her children,

testified to change in the two boys’ demeanor at a chance

encounter in August 1997, five or six months after the

change of residence (T., vol. VII, p. 178-179). Tracy

Arneau, another friend, testified of negative influence by

Howard Tarjeft on the children (T., vol. VIIL p. 117-142).

Christopher Tarjeft testified Respondent has used the

term “nigger” a few times in his presence. Once, when

they discussed the prospect of living with his father, she

said the change would cause him “to go to school with all

the niggers.” While watching a film at his grandparants’

cottage two or three years ago, Respondent said -— “Do

you mean the nigger is the good guy in this movie?” (T.,

vol. Ill, p. 171, 172.) (The parties stipulated that had

A60

Respondent’s sister, a California resident, been able to

attend this hearing she would have testified she did not

see Respondent watch or comment on the movie, T., vol.

IX, p. 127.)

I am not persuaded Respondent made the comment

about the movie, but Christopher Tarjeft’s, other remarks

were credible, thus proving the allegations of paragraph

13(C) in the first amended complaint.

Christopher Tarjeft also testified that during the sum-

mer of 1997, respondent suggested he erase the tapes in

his father’s possession because they could affect her job if

given to the Judicial Tenure Commission (T., vol. III, p.

168-169). This conversation allegedly occurred after issu-

ance of the formal complaint. In addition, a number of

copies of the tapes were in existence elsewhere. | am not

convinced it took place.

Therefore, the allegation in paragraph 3 of the second

amended complaint is not proved.

Respondent’s refusal to testify on October 3, 1997,

after being ordered to do so, was without legal justifica-

tion. The particulars of that incident are set forth in the

procedural history portion of this report.

I find Respondent's conduct to be in fact as alleged in

paragraphs 4 and 5 of the second amended complaint.

Virtually all witnesses called by Respondent gave

evidence of her character on the bench, in the work place,

and in social settings.

In 1985 when Respondent was Chief Judge at the

33rd District Court, she appointed Dewayne Ross

Bassette Director of Probation. Not all applicants were

eae hey Ne ee) Bee

A6l]

African-American (testimony of Edward Nyklel, 33rd

District Court Administrator, T., vol. VIL p. 186). Mr.

Bassette was the first African-American ever in that posi-

tion. (T., vol. VIII, p. 57-84.)

Cheryl Cushingberry and Betty Lark, both African-

Americans, clerked for Respondent at the Wayne County

Circuit Court. Thomas Browne and Margaret Fasca are

both Wayne County Sheriff's deputies. Georgia Bastounis

was a law school intern. All have worked with Respon-

dent at the Wayne County Circuit Court.

Edward Henry and Edward Partee, both A frican-

Americans, are Ferrara family retainers who have known

Respondent for some time. Conroy A. Stanley, Lotus

Johnson, Avela Smith, and Rita Denha are all friends or

acquaintances of Respondent. The first three of these

witnesses are African-American and the fourth is of Mid-

dle Eastern descent.

Without exception, these witnesses testified credibly

that Respondent never displayed any inappropriate

demeanor toward African-Americans or persons of div-

erse ethnic backgrounds in their presence. None of the

court staff observed disparate treatment of attorneys or

litigants in court proceedings by Respondent.

Donald B. Straith, an attorney and former clerk to

Respondent, was called by the Examiner. He testified that

Respondent had “a short fuse” and that this temperament

produced periodic problems during his eight and a half

months on Respondent's staff (T., vol. IIL p. 119-121). He

referred to a remark made in chambers by Respondent

after a jury returned a not guilty verdict in a criminal

case. Although not a direct quote, the gist of the remark

A62

was: “These blacks in Detroit, if they are going to let

people off on a case like this, they are going to get the

crime problem they have got and they are going to get

what they deserve... ” He has never heard Respondent

use the word “nigger.” (T., vol. HI, p. 124-125.)

Both Straith and Deputy Browne testified about an

instance when a juror had taken copies of extraneous law

materials into the deliberation room. Their testimony was

at variance as to who was to have notified Respondent.

This incident has no probative effect on these proceed-

ings and is more indicative of an unhappy employment

situation for Straith than of judicial misconduct by

Respondent.

Michael Alan Flack, another attorney, testified he has

had at least two cases before Respondent, served as trea-

surer in one of her election campaigns, and has assisted

her in a legal matter. He has never seen evidence of racial

or ethnic prejudice by Respondent during his contacts

with her.

Joan LeBlanc, one of Respondent’s witnesses, testi-

fied almost reverentially about Respondent’s compassion

toward her daughter who was a litigant, probably a crim-

inal defendant. Mrs. LeBlanc felt Respondent's actions

saved her daughter’s life (T., vol. VIII, p. 169).

Respondent was assigned to hear a criminal case

involving ethnic intimidation and granted a defense

motion to dismiss (Exhibit 18A), a decision ultimately

reversed by the Michigan Court of Appeals (Exhibit 18B).

After reviewing the above Exhibits and considering

the testimony of Respondent’s character witnesses, I find

A63

no unambiguous evidence to Suggest that Respondent

ever displayed racial prejudice or ethnic bias while on the

bench or in her public and social life.

Respondent called four witnesses whose testimony

was either not allowed or not competent for the purpose

stated. Wayne County Circuit Judge Diane Marie Hatha-

way and Macomb County Circuit Judge Mary

Chrzanowski are both acquainted with Respondent but

have no first-hand knowledge of her conduct on the

bench or special qualification to comment on the effect of

remarks by Respondent on the overall public perception

of the judiciary. Judge Hathaway did testify that her

courtroom has been unaffected by allegations against

Respondent (T., vol. IX, p. 98). Robert C. Maul was not

allowed to testify about a bugging device allegedly

placed on Respondent's telephone and events contribut-

ing to Respondent's state of mind toward her ex-hus-

band. Lee Danielson Zohrob, an attorney, was called to

testify about disparate treatment by the Judicial Tenure

Commission of complaints against women judges. The

testimony of this witness was not allowed as the forum is

inappropriate (T., vol. IV. p. 20-26).

Respondent's first witness was Avela Smith, an Afri-

can-American woman, who encountered Respondent at a

1994 political rally on Belle Isle in Detroit, Ms. Smith was

stranded and Respondent gave her a ride home from the

Island. The two had not met before and had no contact

until 1997 after public reports of the statements which led

to this hearing. (Ms. Bastounis testified calls from Ms.

Smith began in March 1997, (T., vol. VIII, p- 66.) Ms.

Smith offered to testify on Respondent’s behalf.

A64

No [sic] only did Ms. Smith testify about the above

act of kindness, but also that there was no suggestion of

racism in Respondent’s conduct toward her.

The witness stated her concern of the adverse media

coverage and that she unsuccessfully tried to have her

supportive view aired. She decided to send a letter

expressing these sentiments to the Michigan Chronicle.

This letter (Exhibit H2) was produced at the formal

hearing and the Examiner given the opportunity to read

it and voir dire Ms. Smith. During his questioning, the

witness could not define “subterfuge,” a word contained

in the letter. She also indicated the letter had been written

only two weeks earlier, after the hearing had begun.

Because of her poor penmanship, she had the letter writ-

ten down by another. Her reluctant answer as to the

identify [sic] of the scrivener was Respondent herself!

Had it not been for the Examiner’s voir dire, I am

doubtful that the letter’s recent vintage would have been

revealed or, indeed, that it has essentially been drafted by

Respondent. Respondent later testified she has gone over

its content with Ms. Smith and confirmed the sentiments

it contained (T., vol. IX, p. 51-53).

Although Ms. Smith hesitated in divulging Respon-

dent as the scrivener of this letter, she was not a dishon-

est witness. Her hesitation suggested to me that she

sensed some impropriety in the process by which the

letter was created and used.

It is clear from Respondent's defense that she placed

great importance on the testimony of character witnesses

and understandable concern over negative publicity and

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A65

negative correspondence received by Judge Rashid. It is

equally clear from her later testimony that she gave little

or no thought to the consequences associated with her

participation in the production of the Smith letter or that

its existence would have a negligible evidentiary impact

on the outcome of the formal hearing.

I find from the above that the Examiner has proved

the allegations of paragraphs 2, 3, 4, 5, and 6 of the third

amended complaint.

A recent New Yorker cartoon depicted a crystal ball

gazer predicting that “in the future, everyone will have

privacy for 15 minutes.” As intrusive as the world and its

media can be in the private lives of public figures, and all

too often nonpublic figures, one hopes the prediction will

not come true.

We are entitled to regard telephone conversations as

private, and the exceptions carved out by legislators and

courts are limited. The exception permitting use of the

tapes in this hearing may not preclude Respondent from

seeking legal redress in another forum.

Her status as a judge invites, indeed requires, scru-

tiny beyond that given to the average person. The Michi-

gan Supreme Court has held that the goal of protecting

the public by maintaining the standards and fitness of the

judiciary can supersede personal rights of privacy. In re

Seitz, 4412 Mich 590 (1993).

Respondent has attempted to assert that the epithets

she used were inoffensive because they were not meant.

But the use of those words provoke an almost instan-

taneous universal negative perception. The maelstrom of

A66

publicity resulting from the release of these tapes belies

her assertion, particularly since she is a judge. What she

meant was subsumed in how the remarks were perceived.

The Examiner argues that this speech is in fact con-

duct. This may not be legally true. However, the immedi-

ate unassailable effect of widespread dissemination of

this speech is the appearance of impropriety contrary to

Judicial Canon 2(A).

The testimony of Victoria Roberts, immediate past

president of the State Bar of Michigan makes this mani-

fest. Ms. Roberts’ term of office began September 1996

and ended September 19, 1997. As part of her duties, she

traveled around the state, visiting and addressing general

and special purpose bar associations. She responded to

media requests about State Bar activities. She was in a

unique position to discern whether there was-any public

or professional impact generated by the allegations made

about Respondent. And she found it — as far away as

Berrien County, Kalamazoo, and Midland where she

found embarrassment and concern about the integrity of

the judicial system and the impact of these remarks upon

public confidence in the fairness and impartiality of

judges. Ms. Roberts was contacted by representatives of

the media and asked to comment about the situation. She

also authored an article at the invitation of the Detroit

Free Press. (see T., vol. Il, p. 3-33; Exhibit 8A.)

Victoria Roberts described a campaign implemented

by the State Bar-during her stewardship to improve the

public image of lawyers and judges and how offensive

remarks eroded both the effectiveness of the ongoing

A67

campaigns and her persorally in the Detroit legal com-

munity.

“And so when there are statements made, even

if they are off the record, when there are state-

ments made such as the ones that have been

attributed to Judge Ferrara off the record, I

think it is very difficult for members of the

public to believe that those are just private

views that will not somehow seep into the deci-

sion making process.

“And that was the opinion expressed to me not

only by blacks but by white judges and lawyers

as well who are tremendously concerned, and

by members of the public, who are tremen-

dously concerned that the type of impartiality

that judges should have would not be exhibited

by Judge Ferrara because she holds these per-

sonal views.

“They affected me on several levels. Personally,

being a black woman, I was offended that Judge

Ferrara if she made the remarks would cate-

gorically refer to the entire City of Detroit, for

instance, as niggertown, or that she would refer

to a black female judge as a nigger. I feel person-

ally offended by that.

“But as an attorney, I believe that the remarks

were remarks that do hold our entire profession

up to contempt and scorn. I think that it is very

difficult for members of the public to necessarily

separate out the one person from the entire pro-

fession. We find it time and time again when

there is a bad apple, the entire profession is -

People believe that it is not just that person but

that it is far reaching.

A68

“So I do believe that the public perception of

our profession was ratcheted down as a result of

the dominating attention that was given to the

remarks allegedly made by Judge Ferrara.”

(T., vol. Il, p. 43-50.)

Respondent’s own witnesses were troubled by derog-

atory terminology. Conroy Stanley regards “nigger” as

offensive (T., vol. VII, p. 173). Cheryl Cushingberry said

certain knowledge that Respondent used offending

words “would change my whole perception of her com-

pletely” (T., vol. VIII, p. 154). Deputy Thomas Browne

implied that such usage would affect his willingness to

work in her courtroom and raise concern about her fair-

ness (T., vol. VIII, p. 82).

Throughout the formal hearing, Respondent’s con-

duct was more often l

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