Default-Driven Conditional Suspension of a Retired Judge, with Continued Debarment from Exercising Judicial Powers During the Suspension

1. Introduction

In re JOSEPH SLAVEN, JUDGE (SC: 168569, May 29, 2026) is a Michigan Supreme Court judicial-discipline order arising from a 12-count formal complaint filed by the Judicial Tenure Commission (JTC) against a former 23rd District Court judge. The case centers on alleged violations of the Michigan Code of Judicial Conduct and multiple Michigan Court Rules governing judicial discipline and courtroom administration.

The key issues were (1) whether the respondent committed misconduct as found by the JTC (including dishonesty, misuse of judicial facilities to promote a candidate, repeated disrespectful conduct, and noncompliance with court rules and administrative directives), and (2) what sanction was appropriate—especially given the respondent’s nonparticipation and retirement from the bench.

2. Summary of the Opinion (Order)

Because Judge Slaven did not petition to reject or modify the JTC’s Decision and Recommendation and was therefore “in default,” the Michigan Supreme Court accepted the JTC’s recommendation and imposed a six-year conditional suspension without pay, effective May 29, 2026.

The Court further ordered that if the respondent is elected or appointed to judicial office during the suspension, he “will nevertheless be debarred from exercising the power and prerogatives of the office” until at least the suspension expires, citing In re Probert, 411 Mich 210, 237 (1981).

The Court adopted (after de novo review) the JTC’s factual findings across twelve counts and adopted the JTC’s legal conclusions that the respondent violated specified Canons of the Code of Judicial Conduct and rules including MCR 9.104(2), MCR 9.104(3), and MCR 9.202(B)(1)(c) and (e), among others. The Court reiterated the proportionality framework from In re Brown, 461 Mich 1291, 1292-1293 (2000).

Two concurrences are significant: Chief Justice Cavanagh questioned the Court’s authority to impose a conditional suspension on someone no longer sitting, but concurred because In re Probert remains binding and respondent did not challenge authority or proportionality. Justice Bolden concurred while emphasizing the procedural “default” posture and cautioning against treating this outcome as a standard benchmark for “harshest” sanctions in future contested cases.

3. Analysis

3.1. Precedents Cited

In re Probert, 411 Mich 210 (1981)

Role in this case: The majority relied on In re Probert for the proposition that a conditional suspension can carry forward such that, if the disciplined judge later returns to the bench by election or appointment during the suspension period, the judge is debarred from exercising judicial powers until the suspension’s expiration. This is the operative mechanism that gives the sanction continuing effect beyond the respondent’s present status.

Doctrinal pressure point: Chief Justice Cavanagh’s concurrence again signals doubt about whether the Court has authority to impose conditional suspension on a non-sitting judge, but accepts Probert as binding absent a challenge and absent reconsideration.

In re Brown, 461 Mich 1291 (2000)

Role in this case: In re Brown supplies the Court’s structured proportionality considerations for judicial discipline. The majority explicitly invoked Brown’s seven “everything else being equal” standards and applied them to the misconduct findings adopted from the JTC. Justice Bolden’s concurrence also quotes Brown at length to emphasize Brown’s demand for consistency and the JTC’s burden to show equivalency across sanctions.

How Brown shaped the reasoning: Brown functions as both (1) a substantive calibration tool for sanction severity and (2) a legitimacy tool—discipline should not be “standardless review of an apparently standardless decision.” Bolden uses Brown to caution against overgeneralizing a severe sanction where several Brown factors are conceded not to apply.

In re Konschuh, 507 Mich 984 (2021)

Role in this case: Justice Bolden identifies In re Konschuh as one of the cases the JTC relied upon to justify the same penalty (a six-year conditional suspension). Chief Justice Cavanagh also cites In re Konschuh (in a parenthetical) as part of her repeated concerns about conditional suspensions for former judges.

Comparative significance: Bolden highlights that Konschuh involved serious misconduct including criminal disposition and false representations, and uses it as a comparator to question whether Slaven—if contested—would fit comfortably within the same “harshest sanction” lane.

In re Davis, 511 Mich 1003 (2023)

Role in this case: The JTC cited In re Davis as another instance where the Court imposed the same severe sanction. Chief Justice Cavanagh cites Davis in her continuing skepticism about conditional suspensions for former judges. Justice Bolden quotes Davis for the proposition that a six-year conditional suspension without pay is an appropriate sanction for misconduct requiring “the highest condemnation and harshest sanction.”

Comparative significance: Bolden distinguishes Davis on proportionality grounds, noting Davis involved a far broader alignment with Brown’s severity factors and concerns about prejudicing the administration of justice.

In re Brennan, 504 Mich 80 (2019)

Role in this case: The JTC urged parity with In re Brennan. Chief Justice Cavanagh also notes Justice Clement’s concurrence in Brennan as part of the prior discussion questioning authority for conditional suspensions.

Comparative significance: Bolden emphasizes Brennan’s severe factual posture (including false statements under oath and evidence tampering) to suggest that, as a matter of Brown-based equivalency, Brennan may represent a different tier of misconduct—again underscoring that Slaven’s sanction is easiest to affirm given default and nonparticipation.

In re Slaven, ___ Mich ___; 21 NW3d 592 (2025)

Role in this case: Justice Bolden recounts the Court’s earlier order approving the JTC’s request and appointing the Honorable James Fisher as master (terminology later amended to “neutral”). This procedural history is crucial to understanding how the case reached a default posture and why the allegations were “deemed admitted.”

3.2. Legal Reasoning

(a) Procedural posture: default as an admission mechanism

The outcome is heavily driven by the respondent’s failure to participate at multiple stages:

  • Failure to appear at the public hearing before the master/neutral;
  • Failure to move to set aside the default;
  • Failure to file briefs opposing the neutral’s report;
  • Failure to petition the Supreme Court to reject or modify the JTC’s recommendation.

Justice Bolden cites MCR 9.233(B)(1) for the governing rule: if a respondent is in default for not answering or failing to attend proceedings without being excused, “the allegations set forth in the complaint shall be deemed admitted, taken as true” and may form the basis for findings of fact. This procedural device replaces the ordinary evidentiary contest with a rule-based admission and permits the system to reach a disciplinary recommendation and final order despite the respondent’s refusal to engage.

(b) De novo review and adoption of findings

Even in default, the Court states it conducted “de novo review” and adopted the JTC’s factual findings and legal conclusions as its own. This maintains the Supreme Court’s constitutional role as final disciplinarian while still giving practical effect to the default mechanism and the JTC/neutral fact-finding process.

(c) Substantive misconduct findings and canonical/rule violations

The Court adopted findings spanning dishonesty (to the Chief Judge and to the JTC under oath), political misuse of judicial facilities, repeated disrespectful and profane remarks (including on Zoom and on the record), administrative noncompliance (robe requirement; camera/face visibility), undignified behavior (gesturing at security cameras), interference with staff, knowing violation of law (expired plate), and false statements on an insurance application.

Those findings were mapped to violations including:

  • Canon 2A (public confidence; impropriety/appearance) and dishonesty-related violations;
  • Canon 2B (respect for law) and noncompliance with legal obligations;
  • Canon 2C (using prestige of office to advance others’ interests);
  • Canon 3(A)(14) (fairness, courtesy, respect);
  • Canon 3(B)(1) (diligent administrative responsibilities);
  • MCR 9.104(2) and MCR 9.104(3) (conduct exposing courts to “obloquy” / contrary to justice, ethics, or morals);
  • MCR 9.202(B)(1)(c) and (e) (misconduct in office: persistent discourtesy; misuse of office for another’s advantage).

(d) Sanction selection: Brown proportionality plus Probert’s conditional-suspension effect

The Court applied Brown’s proportionality standards in the context of a pattern of misconduct, some of which occurred “on the bench,” and much of which implicated the judiciary’s dignity and the appearance of propriety. The specific remedy—a six-year conditional suspension without pay—derives its forward-looking bite from In re Probert: even if the respondent is elected or appointed during the suspension, he may not exercise judicial powers until the suspension concludes.

Notably, both concurrences treat the respondent’s lack of challenge as pivotal: Chief Justice Cavanagh and Justice Bolden each point out that the respondent’s nonparticipation functionally concedes proportionality in this posture.

3.3. Impact

(a) Institutional impact: discipline can proceed to severe sanctions despite strategic nonparticipation

The case underscores that retirement (or claiming retirement) does not necessarily end judicial-discipline exposure, and that default procedures allow the discipline system to reach finality. The Court’s order reinforces that a respondent cannot necessarily avoid consequences by refusing to appear or by stepping down midstream.

(b) Doctrinal impact: Probert remains the controlling basis for conditional suspensions against former judges

Chief Justice Cavanagh’s concurrence keeps alive a live jurisprudential question—whether In re Probert was correctly decided—but simultaneously confirms that, absent reconsideration, Probert remains binding law that authorizes conditional suspension with debarment from exercising judicial powers during the suspension period. Future litigants who wish to contest authority are put on notice that the issue is preserved in concurrences but not resolved here because it was not raised by respondent.

(c) Proportionality impact: Bolden’s caution limits how broadly this “harshest sanction” should be used as precedent

Justice Bolden’s concurrence functions as a limiting lens for future sanction comparisons. It suggests that this case’s precedential value on sanction severity is weakened by the “unique circumstances” of default and repeated nonparticipation, and warns against citing Slaven as an ordinary example of when the most severe sanctions are proportionate—especially where the JTC concedes certain Brown factors do not apply (including, notably, that the actual administration of justice was unaffected).

4. Complex Concepts Simplified

  • Conditional suspension (judicial discipline): A time-limited bar from serving as a judge (here, without pay). “Conditional” emphasizes that the sanction carries consequences if the person returns to office during the period: they may hold the title by election/appointment but remain unable to exercise judicial powers.
  • Debarred from exercising the power and prerogatives of the office: Even if elected/appointed, the person may not perform judicial acts (hear cases, issue orders, etc.) until the suspension ends.
  • Default in disciplinary proceedings: A procedural status triggered by failing to answer or appear. Under MCR 9.233(B)(1), default causes the complaint’s allegations to be treated as admitted and true.
  • De novo review: The Supreme Court states it independently reviews the record rather than deferring to the JTC’s conclusions, even while adopting them.
  • Canon violations: The Michigan Code of Judicial Conduct is a set of ethical rules for judges. Violating them can lead to sanctions, including suspension.
  • “Obloquy” (MCR 9.104(2)): Public disgrace or harsh criticism that brings the courts into contempt or reproach.

5. Conclusion

In re JOSEPH SLAVEN, JUDGE reinforces that Michigan’s judicial-discipline system can impose a severe, forward-looking sanction—a six-year conditional suspension without pay—even when the respondent is retired and refuses to participate, because default rules deem allegations admitted and because In re Probert remains binding authority for conditional suspensions that debar a judge from exercising judicial power if they return to office during the suspension.

The decision also deepens two ongoing themes in Michigan judicial-discipline jurisprudence: (1) continuing, voiced skepticism (in concurrences) about the scope of authority to conditionally suspend former judges, and (2) heightened concern—especially from Justice Bolden—about maintaining Brown-mandated consistency and not overreading default-driven outcomes as definitive proportionality benchmarks for contested future cases.