On Tuesday, June 13, 2023, the Michigan Judicial Tenure Commission issued a memorandum showcasing its resolution analysis from 2016-2021, serving as an independent review of the racial composition of the judges about whom the commission receives complaints and the commission’s dispositions of those complaints.
The purpose of establishing the Judicial Tenure Commission in accordance with the Michigan Constitution was to address public apprehensions regarding the ethical conduct of judges in Michigan and to ensure that judges meet the ethical standards expected by the public. Comprised of nine individuals who volunteer their services, the commission includes four members elected by judges, three elected by the State Bar of Michigan, and two lay persons appointed by the Governor.
In response to concerns raised by the Association of Black Judges of Michigan (ABJM) regarding the racial makeup of the commission’s public complaints, the commission is actively pursuing an independent review. The ABJM has highlighted that out of the nine public complaints filed by the commission against judges since 2016, five of them have been against African American judges. It is important to note that the commission’s public complaints are the only actions taken by the commission where the judge’s identity is disclosed publicly. Notably, Michigan law prohibits the commission from revealing the identities of judges against whom the commission would have likely filed public complaints but did not due to the judge’s resignation prompted by the commission’s investigation.
According to the report, since the year 2016, the commission has admonished judges 21 times. Five admonitions went to African American judges. Two of the five went to one judge and two more went to another judge. So only three separate African American judges have been admonished since 2016, while 15 Caucasian judges have been, totaling 16½% African American.
Moreover, the analysis states that since 2016 the Judicial Tenure Commission has cautioned, or given a special dismissal to, a total of 40 judges. Of those, six were African American and 34 were Caucasian. That is 15% African American. Also, seventeen judges have resigned or retired while under investigation. Two of those were African American. That is 12%. The great majority of those cases, according to the report, would likely have resulted in public complaints had the judge not stepped down.
Since 2016, three judges have agreed to a penalty, and none of them were of African American descent. If the judge had not consented, these incidents would likely have become public complaints. Despite being open to it, no African American judges have opted for this course of action for reasons unknown. There have been a total of seven public complaints since 2016, with four of them involving African American judges. (Please note that the provided numbers were accurate as of October 2021, and have not been updated to reflect any changes in 2023 due to resource constraints.)
According to the report, when analyzing the visible statistics, which include a limited number of public complaints, and confidential statistics, it becomes evident that only the public complaints have a disproportional impact on African American judges. By considering all cases that would likely have become public complaints if the judges had not resigned or accepted a consent sanction, the commission observe a minimum of 27 such cases, out of which six involved African American judges. This accounts for 22% of the total. Remarkably, if the number of African Americans who received or were likely to receive a public sanction were just two fewer (four instead of six), the proportion of African American judges in that category would actually be lower than their representation in the entire judiciary. Similarly, if the number were reduced by only one (five instead of six), the proportion would be slightly higher than the overall proportion of African American judges in the judiciary. In other words, even the slight statistical suggestion of a potential disparity disappears when the numbers are slightly altered. This outcome is a result of dealing with a significantly small statistical sample. When a small apparent disparity is so greatly influenced by a minor change in the number of charged judges, it indicates that the observed disparity lacks statistical significance.
While the commission maintains that its case dispositions do not exhibit any intentional or inherent racial disparity, it acknowledges the significance of this matter and understands that public trust in the fairness of its decisions would be strengthened through an examination of their racial composition conducted by an independent auditor. It is important to note that if an independent auditor were to identify an actual racial disparity in the commission’s actions, which the commission may have overlooked and cannot be attributed to the choices made by the judges under investigation, the commission is committed to being made aware of such findings and comprehending the underlying factors contributing to it.
A copy of the original filing can be found here.