# Petition for Writ of Certiorari — Ferrara v. Michigan Judicial Tenure Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1105%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 525 U.S. 1146 ## Text , Supreme Court, U.S PILED @8 1087 san5- 199 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. iv 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 vi 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,’ ix 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 l 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. 2 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. et Pe — itl tie aa 3 “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; * * * + (c) intentionally discloses, or endeavors to 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, 5 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)}. 6 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 7 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. 8 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. © Meanwhile, Petitioner had filed her federal action against 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. 9 (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 10 (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. > 3 Ed $ a * % 11 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 12 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 13 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 14 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 15 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- 16 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). al eae in ee Pe ere ae Th soit \ ities nie ith ine apktaeh il ui Peivilei gene Pee tace Ot 17 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 18 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 19 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. 20 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 21 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. 22 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 23 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 24 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 25 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 : Bd j 2 : 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. 26 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, 27 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 28 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 29 * * * “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 30 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. 3 * % a ¥ 3 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 3 . -. a : a Al 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 A2 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 4 4 5 * 3 R = A3 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 - A4 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 % a : x iS a 3 A5 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. 4 ¥ ¥ $ A7 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 A8 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 A9 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) i 4 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 2 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 te 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 ao 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1105%3A1. Public record. Not legal advice.