On Friday, October 3, 2025, Michigan Judge Kirsten Nielsen Hartig filed a reply brief in support of her motion for summary disposition regarding bifurcation in a case before the Judicial Tenure Commission. The filing argues that the Commission’s structure is unconstitutional and that the counts against Judge Hartig should be dismissed.

The case is entitled “In the Matter of Judge Kirsten Nielsen Hartig,” with case number FC 109.

Judge Hartig’s brief addresses arguments made by the Disciplinary Counsel. The central contention is that the Commission’s dual role as both prosecutor and adjudicator violates due process principles. The brief asserts that the Commission’s structure presents an “impermissible risk of actual bias,” drawing heavily on the U.S. Supreme Court’s decision in Williams v. Pennsylvania.

The document emphasizes that the Commission’s function extends beyond merely making recommendations. Citing Michigan Court Rule 9.244(B)(1), the brief highlights that the Commission is required to make “written findings of fact and conclusions of law,” culminating in a “Decision and Recommendation for Discipline.” This, according to Judge Hartig’s counsel, constitutes an adjudicative role, as acknowledged in In re Morrow, a previous Michigan Supreme Court case.

The brief directly challenges the Morrow decision, arguing that the Michigan Supreme Court should have considered Williams v. Pennsylvania, which addresses the combination of prosecutorial decision-making with an adjudicatory role, rather than Withrow v. Larkin, which deals with a different aspect of due process. The brief contends that Morrow was wrongly decided and that the Commission’s current structure is inherently unconstitutional.

The filing also addresses the argument that Judge Hartig has not provided sufficient evidence of actual bias on the part of the Commissioners. The brief asserts that Williams does not require proof of actual bias but focuses on the “risk of bias.” It argues that the very nature of the Commission, acting as both accuser and adjudicator, creates an unacceptable risk.

The brief cites In re Chrzanowski to support the principle that a respondent in a judicial discipline proceeding is entitled to an unbiased decision-maker. It also references Friedman v. Rogers, a U.S. Supreme Court case affirming the right to a fair and impartial hearing in disciplinary proceedings.

The document further argues against the “presumption of honesty and integrity” afforded to Commission members in Morrow. Judge Hartig’s counsel asserts that the objective standard, focusing on the risk of bias, should supersede the need to ascertain actual bias, which is inherently difficult to prove.

The conclusion of the brief urges the Master to acknowledge that Michigan’s judicial discipline scheme is unconstitutional, even if the Master is bound to follow Morrow.

A copy of the original filing can be found here.