The Michigan Supreme Court has suspended Wayne County Circuit Court Judge Bruce U. Morrow for misconduct in office.

The Judicial Tenure Commission (JTC) filed a complaint against Morrow, the respondent in the case, asserting that he made inappropriate comments and used sexually graphic language while speaking with two female prosecuting attorneys during a murder trial. A master was appointed to oversee the matter and an investigation took place. Ultimately, the JTC recommended that Morrow be suspended for 12 months without pay and be publicly censured.

Morrow asked the Michigan Supreme Court to review the JTC’s recommended discipline. He also argued the JTC improperly serves both a prosecutorial and an adjudicative role, thereby violating his due process rights.

The Michigan Supreme Court agreed that Morrow should be publicly censured. However, the high court ruled that Morrow should be suspended for six months without pay - not the 12 months recommended by the JTC.

“While respondent’s behavior is certainly unacceptable, we do not believe his inappropriate comments over the course of one trial merit twice the suspension imposed for years of sexual harassment,” the justices wrote in In re Morrow (Docket No. 161839). Chief Justice Bridget M. McCormack and Justices David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh and Elizabeth M. Welch signed on to the opinion.

Justice Viviano wrote a separate concurrence, explaining why the master improperly conducted the proceedings remotely rather than in person. Justice Bernstein also wrote a separate concurrence, emphasizing his “continuing concern about the use of videoconferencing in these situations going forward.”

Justice Brian K. Zahra concurred in part and dissented in part. He disagreed with imposing a lesser six-month suspension, noting the respondent “is a frequent flyer before the JTC and has failed to demonstrate that he has learned anything from his previous encounters.”

Background

The JTC filed a formal complaint against the respondent in August 2020. The complaint cited three counts of judicial misconduct, all relating to the respondent’s comments to two female prosecutors during a murder trial. The complaint alleged the respondent had used “unnecessarily crass and sexual language while discussing the trial and providing feedback to the prosecutors” and had a discussion with them “wherein he guessed their heights and weights, unbidden, while eyeing them.”

Retired Judge Betty R. Widgeon was appointed as master to oversee the case. She conducted virtual proceedings and ultimately found that, with respect to Counts I and II, the respondent violated Canon 2(B), Canon 3(A)(3) and Canon 3(A)(14) of the Code of Judicial Conduct. Regarding Count III, she found the respondent violated Canon 3(A)(3) and Canon 3(A)(14).

In June 2021, the JTC issued a decision and recommendation for discipline that mirrored the master’s findings. Unlike the master, the JTC further determined the respondent violated Canon 2(B) with respect to Count III. As a result, the JTC concluded the respondent committed misconduct in office by violating:

• MCR 9.202(B)(1)(c), which defines “misconduct in office” to include “persistent failure to treat persons fairly and courteously.”

• MCR 9.202(B)(1)(d), which defines “misconduct in office” to include “treatment of a person unfairly or discourteously because of the person’s … gender.”

The JTC further determined the majority of factors set forth in In re Brown, 461 Mich 1291 (2000), weighed in favor of a more serious sanction against the respondent. Accordingly, the JTC unanimously recommended the respondent be sanctioned with a public censure and a 12-month suspension without pay.

The respondent petitioned the Michigan Supreme Court to review the JTC’s recommended discipline. He challenged the form of the proceedings and asked high court to reject or modify the recommendation of discipline.

Lesser Sanction Required

Upon reviewing the challenges to the JTC’s recommended discipline, the Michigan Supreme Court said it was “unpersuaded” by the respondent’s arguments and agreed that he committed judicial misconduct. “However,” the high court said, “we hold that a lesser suspension is appropriate and impose a six-month suspension without pay as well as a public censure.”

In its analysis, the Michigan Supreme Court first rejected the argument that the judicial disciplinary system violated the respondent’s due process rights because the JTC plays both a prosecutorial and an adjudicative role. “Withrow [v Larkin, 421 US 35 (1975)] supports the conclusion that generally an administrative body sharing investigative and adjudicatory roles is not a due-process violation,” the high court wrote. “We still believe that to be the case for the JTC.” According to the justices, the respondent’s argument was insufficient to “‘overcome a presumption of honesty and integrity in those serving as adjudicators,’ particularly when it is our Court that truly serves as the final adjudicator.”

Next, the Michigan Supreme Court turned to the JTC’s discipline recommendation, agreeing with the commission’s analysis that all the In re Brown factors, except a few, weighed in favor of a more severe sanction. “Despite our general agreement with the JTC’s assessment of the [In re Brown] factors,” the high court said, “we believe that rather than the JTC’s recommendation of a 12-month suspension, a 6-month suspension is appropriate given the severity of respondent’s conduct relative to that in other judicial discipline cases.”

Although the justices pointed out the respondent “did not self-report to the JTC,” did not “acknowledge[] the highly inappropriate nature of his conduct” and “has not expressed remorse,”  they concluded that a public censure and a six-month suspension were the more “appropriate” sanctions. “[W]e agree with the JTC that respondent committed misconduct in office and that public censure and suspension are appropriate. However, we believe a 6-month rather than a 12-month suspension is proportionate. Therefore, we modify the JTC’s recommendation and order that the Honorable Bruce U. Morrow, Judge of the 3rd Circuit Court, be suspended without pay for six months ….”