HOW MANY WAYS ARE THERE TO GET RID OF A BAD JUDGE?

At least three, according to the Michigan Constitution — and that’s probably two too many.

Which brings us to another question: Is there too much clutter in the state’s 57-year-old Constitution? The answer is Yes, and much of it could have been purged long ago but wasn’t and isn’t likely to be unless there is another Constitutional Convention.

The Ballenger Report (TBR) has published two recent articles on Michigan’s political “nuclear options” for the removal of public officials, elected and appointed, before their terms of office have expired.

Let’s set aside for the moment the executive and legislative branches of government. TBR claimed the only way the state could get rid of a flawed judge other than through the judiciary’s own Judicial Tenure Commission was via the impeachment clause granted to the Legislature by our basic charter.

But now comes Adam Pavlik, senior law clerk for Michigan Supreme Court Justice Beth Clement, who sent a comment to TBR identifying yet another way to get rid of bad judges. This power is found in Article VI, Section 25, of the 1963 Michigan Constitution, which reads:

For reasonable cause, which is not sufficient ground for impeachment, the governor shall remove any judge on a concurrent resolution of two-thirds of the members elected to and serving in each house of the legislature. The cause for removal shall be stated at length in the resolution.

Pavlik says that the VI/25 method for removal of a judge is sometimes called “Legislative Address.” Massachusetts used that term in its Constitution drafted in large part by John Adams (long before he became president) in 1780. Texas calls judicial removal by the legislature a “Resolution of Address.” Michigan’s version of “Legislative Address” dispenses with the need for a trial in the Senate (as with the impeachment process), but it requires a two-thirds vote of BOTH chambers to remove the official.

A version of Article VI, Section 25, text has appeared in all three of Michigan’s Constitutions preceding the current one:
Article VIII, Section 3 of the 1835 Constitution
Article XII, Section 6 of the 1850 Constitution
Article IX, Section 6 of the 1908 Constitution

Yet, amazingly, in over 183 years of statehood, only two judges have been the targets of removal using the “Legislative Address” method — and neither came close to succeeding, according to Pavlik:

• A select committee was appointed, by a vote of 35-7, to investigate Justice George Morell in 1837, the very first year Michigan became a state.
  However, no mention is made of this removal attempt in Justice Morell’s biographical sketch on the Michigan Supreme Court Historical Society website. Justice Morell, after serving as a judge and state legislator in New York, was appointed by President Andrew Jackson in 1832 to serve on the Michigan Territorial Supreme Court. After statehood, Michigan Governor Stevens T. Mason appointed Morell to the Supreme Court, on which he served until 1843, completing his service as Chief Justice.

* More recently, in 1962 — the very year when our most recent Con-Con was being concluded — a House Journal documents a proceeding against Tuscola Co. Probate Judge Henderson Graham that used the “Legislative Address” removal process. But on April 26, 1962, the House of Representatives voted down, 105-3,  a resolution to remove Graham.

Insight can be gained as to why Article VI, section 25, was first included and has been retained in three subsequent Constitutions by reviewing the Official Record of the 1961-1962 Constitutional Convention. Delegate Karl Leibrand (R-Bay City), Vice Chairman of the Committee on the Judicial Branch and a former Bay County Probate Judge, explained during Convention debate:

“Judges in Michigan are not subject to voter recall. They are subject to impeachment. However,
impeachment connotes some wrongdoing or corruption in office. A remedy is required where a
judge becomes mentally or physically incompetent during his term of office. That is particularly
aggravated, because if he is mentally incompetent, he couldn’t resign if he wanted to. He
wouldn’t have the capacity to resign and the public might be stuck with a judge for six or eight
years because of mental or physical disabilities preventing him from attending to the duties of
his office. This section would permit removal, by a two-thirds vote of the members elected to
each house of a judge who was in such condition. Over half of the states have similar provisions
in their constitution. This section has been a part of the Michigan Constitution for the past 130
years.”

A question was asked of Delegate Liebrand by Delegate Sidney Barthwell (D-Detroit): “What is meant by the phrase at the end of the section. ‘The cause for removal shall be stated at length in the resolution’?” Delegate Liebrand responded, “It means that the complete nature of the charges or reasons shall be set forth. In other words, not simply the word ‘senile’ or the words ‘ awful sick’ will do. The complete nature of the situation should be set forth.”

Eugene G. “Gil” Wanger, one of only half a dozen surviving 1961-62 Con-Con delegates, says he “can’t imagine anything more unworkable” than VI/25 and that “it looks like still another opportunity for lawyers to get some more fees.” A retired Lansing attorney, the 86-year-old Wanger says Liebrand’s explanation makes sense, and that is the best explanation possible for why the section survived for more nearly two centuries and why the late Bob Danhof, chairman of Con-Con’s Committee on the Judicial Branch, which reported the language to the full convention, retained it from past conclaves.

As for impeachment, only one judge in Michigan has ever been impeached since our first Constitution took effect in 1835. He was Michael Nolan, Probate Judge in Gogebic County in Michigan’s Upper Peninsula. In the middle of World War II, Nolan was impeached, convicted and removed from office in 1943 for pocketing excessive marriage license fees from 722 “secret marriages” performed in Gogebic County between 1938 and 1942. Judge Nolan is the only Michigan public official of any branch who has ever been impeached, convicted and removed from office.

Voters in Michigan on November 3, 2026, will be asked whether a Constitutional Convention of elected delegates should be called. This yes-or-no question is automatically placed on the statewide ballot every 16 years. Voters since the adoption of the 1963 Constitution have rejected, by overwhelming margins,  calling a new constitutional convention in 1978, 1994 and 2010.

Bob LaBrant of Perry, a retired legal counsel and uber judicial historian, notes that in 2026 Michigan will have operated under the 1963 Constitution for 63 years. It was 58 years between the 1850 Constitution and the adoption of the 1908 Constitution. It was 55 years between the 1908 Constitution and the 1963 Constitution.

That said, if a new Con-Con is convened some half a dozen years from now, Section 25 of Article VI is not likely to survive a fourth time for one simple reason — voter approval  in 1968 of an amendment to our current, 1963 Constitution to provide for a Judicial Tenure Commission (JTC).

Article VI, Section 30, of our current charter empowers the JTC to recommend to the Michigan Supreme Court “that the Supreme Court may censure, suspend with or without salary, retire or remove a judge for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice.”

This commission seems to have worked — it has recommended that the Supreme Court remove 17 judges in the past half-century, including six in just the last decade. All the recommendations were carried out by the high bench. Former Livingston Co. District Judge Theresa M. Brennan became the most recent defrocked jurist, last year.

With that 1968 constitutional amendment, there seems to be no need for Article VI, Section 25, removal powers or even the impeachment and trial of judges. A new Constitution can (if it wants to) remove those intrusions by the legislative and executive branches into judicial administration.

*****************************************