By Ed Wesoloski
The Daily Record Newswire
DETROIT — A master has cleared a Wayne County Circuit Court judge of wrongdoing after he granted divorce judgments in four cases without taking sworn testimony.
The Judicial Tenure Commission said that Wayne Circuit Judge Richard B. Halloran Jr. admitted he had done so in more than 400 cases but specifically charged him with misconduct in only four cases.
The JTC’s complaint alleged that Halloran violated MCL 552.9(1), MCL 552.6(3) and MCR 3.210, respectively, by not taking sworn proofs to establish jurisdiction and the statutory grounds for divorce, and by granting a divorce judgment “without taking the statutorily required proofs in open court.”
But John D. O’Hair, a retired Wayne Circuit judge appointed as master by the Michigan Supreme Court, concluded that Halloran was entitled to dismissal of the charges and that the JTC should “dismiss or withdraw” its complaint.
O’Hair said that Halloran and JTC Executive Director Paul J. Fischer, who was the examiner in the case, agreed there were no disputed facts. As a result, no public hearing took place and after considering the parties’ arguments, O’Hair decided the matter as an issue of law.
O’Hair asserted that if the JTC reviewed the “lawfulness or propriety of the procedure utilized by Judge Halloran, the Commission would be functioning as an appellate court and/or exercising superintending control over his decisions, which it is prohibited from doing by MCR 9.203(B).”
Detroit attorney Phillip J. Thomas, who represented Halloran, agreed.
“If this were a factual dispute, I believe [the commission] would have the ability to refer the matter back to the master. … That’s how it would normally be done,” he said.
Because the decision was made as a matter of law, Thomas said he believed “the Judicial Tenure Commission is obligated to accept the master’s report.”
MCR 9.215 provides that after the master files a report and recommendation, either the respondent or the JTC examiner can file objections.
Fischer said that “all options are being considered.”
At issue in the four charged cases is Halloran’s use of an abbreviated procedure during case management or settlement conferences occurring in June and September 2013. In one case, according to the JTC, Halloran told the parties’ attorneys at a settlement conference that he was taking judicial notice of the divorce complaint and that jurisdiction was not contested.
And because the parties were mediating their case, Halloran said he could take judicial notice that the parties’ marital relationship had broken down.
The JTC’s complaint alleged that Halloran later granted the divorce judgment without taking “sworn testimony to comply with the statutory requirements to grant a judgment of divorce from either party at any time in this case.”
In two other cases, Halloran asked the couples whether they would they go back and live as husband and wife if he did not grant them a divorce.
In one of those cases, after the couple responded that they would not live as husband and wife, Halloran found the statutory grounds for a divorce were established and granted the divorce. In the other, based on the couple’s “no” responses and Halloran’s review of the complaint, Halloran again found that the statutory grounds had been established and granted the divorce.
In one other charged case, plaintiff’s counsel and the parties made statements on the record about the issues of alimony, marital property and the plaintiff’s pension.
When counsel questioned Halloran about taking proofs, he responded, “I don’t need to take proofs. I just held a trial,” and issued a divorce judgment.
However, the JTC’s complaint states that there was no “sworn testimony as neither party had been placed under oath.”
O’Hair said with respect to the four charged cases, Halloran “determined court jurisdiction and the grounds for divorce by taking judicial notice of the parties’ pleadings wherein they admitted the court’s jurisdiction and that there was an irreparable breakdown of the marriage, using the precise language statutorily mandated by the Legislature.”
O’Hair stated, “Judicial admissions are formal admissions in pleadings that have the legal effect of withdrawing the admitted fact or facts from issue and dispensing wholly with the need for proof of the facts admitted. …
“They are effective tools and there is no law or court rule that prohibits their use in divorce litigation,” said O’Hair.
And, the “decision to use the abbreviated procedure was deliberately and thoughtfully made with the purpose of improving a trial practice by the elimination of unnecessary proofs,” he said. “[T]he procedure does have a sound, arguable basis.”
The Michigan Supreme Court suspended Halloran without pay for 14 days and censured him in July 2010 for dismissing 30 family-law cases that were close to becoming stale under court administrative policies.
The Supreme Court adopted JTC findings that Halloran dismissed the cases but continued to work on them “to avoid detection” by court administrators.
Thomas said that in the current matter, “we’re not talking about a judge who doesn’t do his work.”
Thomas referred to a letter provided by Judge Kathleen M. McCarthy, the presiding judge of the Wayne Circuit’s Family Division. McCarthy’s April 28, 2015, letter stated that Halloran’s docket “is always within [the State Court Administrative Office’s] time standards and nearly always with the court’s more stringent expectations.
“The few times he has not been, he was eager to meet with me to resolve the issue, was appreciative of the oversight, and immediately took corrective steps.”
Wayne Circuit Judge Robert J. Colombo, saw things the same way in an April 7 letter. He also noted that Halloran “is always willing to provide backup or docket coverage when a judge is unavailable or in need of additional help.”
O’Hair referred to the letters in his report and recommendation.
Halloran’s “compliance with time standards is very good and to that end he has used innovative procedures that differ from those traditionally used by other judges.
Simply because his procedures were different, it does not make them violations of statutes or court rules.”
O’Hair concluded that Halloran “did not engage in judicial misconduct” and to the extent that “he erred in judgment, it was a mistake while acting with diligence and good faith, which, as expressly provided in MCR 9.203(B), is not judicial misconduct. …
“He did no wrong.”
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