Legal professionals have mixed views of what the Michigan Supreme Court will do with the Judicial Tenure Commission's misconduct finding and suspension recommendation regarding Oakland County Family Court Judge Lisa O. Gorcyca. Here at this blog, we've asserted the position that the JTC was not the appropriate forum to conduct what amounted to a review on the merits of one of Judge Gorcyca's decisions in a highly-contentious child custody case.

The case gained world-wide media attention in the summer of 2015 when Judge Gorcyca held the three Tsimhoni children in contempt of her court and put them in jail for refusing to spend time with their father pursuant to her orders. Judge Gorcyca has since recused herself from the case, but her contempt ruling has burgeoned into a challenge to her professional standing as a family court jurist courtesy of the Michigan Judicial Tenure Commission.

Last fall, a special master made a series of findings regarding how Judge Gorcyca handled the matter; several of those findings addressed Gorcyca's decision to use her contempt powers. Based on the special master's findings of misconduct, the JTC has recommended Judge Gorcyca be suspended.

As is her right, the judge has requested a trial -really an oral argument- before the Michigan Supreme Court; the argument has been scheduled for March. Last week, the Michigan Supreme Court granted the request of the Oakland County Bar Association and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file an Amicus Curiae brief.

In the introductory paragraphs to the Amicus brief, the OCBA states:

It is often said: “In criminal cases, judges see bad people at their best; and in family law cases, judges see good people at their worst.” In family law, where emotions often run high, judges require both broad authority to issue orders and a full arsenal of powers to implement their orders. They cannot and should not be burdened by “political correctness”. Indeed, one of the cornerstones of our judicial system is the recognition that judges provide justice for all, including, when appropriate, supporting the minority or unpopular causes.

The Amicus brief highlighted points of contention with two of the JTC's findings: 1) the alleged intemperate comments made by Judge Gorcyca; and 2) the alleged error in the mechanics of her contempt ruling.

Characterizing the proceedings as a "disingenuous prosecution", the Amicus concluded, and we here at the Law Blogger wholeheartedly agree, that Judge Gorcyca, in the worst case, made an error of law; she did not transgress judicial norms or canons; she did not commit judicial misconduct.

At the heart of the Amicus brief is the rationale that if judges are subjected to punishment based on their substantive rulings, then a chilling effect will seep into the judicial fabric of our county court system like a damp cold fog. This chilling fog will distort the mechanism of justice for many families at the very time they need the county family court the most.

This blogger recently experienced the chilling effect of the Gorcyca case first hand. During argument in a parental alienation case, we represented the target parent, attempting to break through a stubborn wall of parental alienation. In her reluctance to enforce the terms of a previously entered parenting order, the family court judge specifically referenced Judge Gorcyca's case.

For all of these reasons, we here at the Law Bogger sincerely hope that the Michigan Supreme Court is persuaded by the OCBA's amicus brief. Errors of law belong in the Court of Appeals, not before the Judicial Tenure Commission.

Post #577

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Special Master Dan Ryan

Fallout for Oakland Family Court Judge Lisa Gorcyca on the Tsimhoni parental alienation case continued this month with the release of the Special Master's report to the Judicial Tenure Commission. The report made findings of judicial misconduct that Judge Gorcyca has the opportunity to challenge prior to the case heading to the Michigan Supreme Court for disposition.

Judge Gorcyca's lawyer, Thomas Cranmer of the Miller Canfield law firm, has vowed to challenge retired Judge Dan Ryan's findings as Special Master, and has until July 29th to file a statement of objections. This case will continue for the balance of this calendar year.

Here is how Judge Ryan concluded his 34-page report:

Contrary to the chilling impact Judge Gorcyca contends this case will have on judges across the state, this is not a case that stands for the proposition that judges cannot employ stern language or make difficult decisions from the bench in contentious cases. It is a disciplinary action which stands for the singular proposition that if a judge is going to use the inherent power of contempt, the ultimate “tool in the tool box” after years of “frustration,” the judge may wish may wish to consult the owner’s manual to make sure that she or he are using the tool properly before employing one of the 34 penultimate tools of inherent judicial power, a contempt finding, to deprive any individual, or children in this case, of their liberty.

Prior to the case being placed on the Supreme Court's docket for the next term, Judge Gorcyca's case goes to the full Judicial Tenure Commission for a review of the Special Master's findings. The JTC can dismiss the complaint at that time, or make recommendations to the Supreme Court.

The "next steps" in this procedure are summarized by the Commission on its website:

After hearing the testimony, or after reviewing the master’s findings, the Commission may dismiss the matter if it determines that there has been insufficient evidence of misconduct.  However, if the Commission determines that misconduct has been established by a preponderance of the evidence, it may recommend that the Michigan Supreme Court impose discipline against the judge.  The Commission itself has no authority to discipline a judge; the Michigan Constitution reserves that role for the Supreme Court.  The Commission may recommend that the Court publicly censure a judge, impose a term of suspension, or retire or remove the judge from office.  The Commission issues a Decision and Recommendation, which triggers the next series of steps.

It is difficult, given the misconduct findings of the Special Master, to predict what the plenary JTC will do, but we here at the Law Blogger think we know what the Supreme Court will do, regardless of any recommendations from the JTC.

Respectfully, while we applaud how Judge Ryan set about doing the difficult job he was asked to perform, we disagree with his ultimate conclusions, and agree with Judge Gorcyca on one key point: the next family court judge that considers making a hard decision to enforce her orders in a high-conflict custody matter will no doubt think twice about resorting to her contempt powers. In our opinion, that impacts the independence of the judiciary in the wrong way.

To appeal a decision to a higher tribunal is one thing; but to remove a jurist from the bench essentially as a consequence for a particular decision is not the way courts are designed to function.

Accordingly, while the Supreme Court may agree with the tone of Judge Ryan's misconduct findings, we here at the Law Blogger believe the High Court will reject any JTC recommendation of reprimand or suspension in this case. We hasten to add, in our opinion, that is the right result.

Regardless of the outcome, this case now stands for the proposition that family law professionals of every stripe, eventually, will bear the scars of their work in the industry.

Post #549

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Mom and Dad Tsimhoni

Judges must be fair and impartial despite the intense family emotions that swirl about their case load. The judicial system depends on that bedrock principle.

When you file a case in one of the county family courts here in Michigan, the county clerk that processes the complaint utilizes a blind draw system to assign your judge. This means that litigants cannot select the judge assigned to their case.

Sometimes, family court litigants are viscerally dissatisfied with the judge assigned to their case, especially when the judge makes decisions adverse to their interests. In every case, the family court judge will upset one of the two parents embroiled in a custody or parenting battle.

Judges are required to remain neutral, unbiased finders of fact; these judges are charged with determining the best interests of the minor children in every case. From time to time, a parent believes that the judge has lost their impartiality and claims that their judge is personally invested in their case to the point of bias.

When these allegations surface, one option available to family court litigants is to file a motion to disqualify the judge. If a family court judge denies such a motion, then the offended litigant can file the motion with the chief judge of the circuit court.

Recently, this procedure played-out in the high-profile, high-conflict Tsimhoni divorce. The mother attempted to disqualify Judge Lisa Gorcyca after her three children spent their summer in Children's Village and at a court-ordered juvenile camp, and more-recently, after she lost custody of the children to her ex-husband.

After these adverse rulings, and after she changed lawyers for about the 10th time, mother filed the motion to DQ the judge, and Judge Gorcyca denied the requested relief, refusing to step down from the case. Among the thousands of cases on the open family court docket in Oakland County, this one stands-out due to mother's severe parental alienation against the father.

Mother's new lawyer filed an appeal with Oakland Circuit's Judge Nanci Grant, the chief judge of the court.

Now, as this parental alienation case blew-up in the national media because both parents refused to work together as co-parents, they tossed it into the lap of the Oakland County Family Court where Judge Nanci Grant has recused herself from hearing the appeal of mother's attempt to disqualify Judge Gorcyca.

This was a very strategic move by the veteran Oakland County chief judge. Now that she has recused herself, the case goes before the plenary court to determine whether any of the remaining judges wish to take the case.  We don't think there will be any takers.

If none of the judges on the Oakland County Circuit Court want this steaming pile of horse dung, it goes to the family court judges of an adjacent county like Wayne, Genesee or Macomb County Circuit Courts.

The parents now need to bury the hatchet and regain control of their family for the sake of their children.

One of the best kept secrets of the family court is that the judges are powerless if the parents agree on a plan going forward. If they cannot agree, then they judges have the power to control every aspect of of their family life.

It is exceedingly difficult and rare to successfully bring a motion to disqualify a judge. For the most part, family court litigants are stuck with the "luck-of-the-draw" where judicial case assignments are concerned.

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Post #502

Maya Tsimhoni

Children's Village is not the place you want to be as a child, especially if you come from a background of relative privilege. You'll see things there that your mom and dad never explained; for the first time in your life, you'll need to check your six.

Yet that is where three young Oakland County siblings wound-up over the past two weeks when they refused to comply with Judge Lisa Gorcyca's ruling that they spend parenting time -a lunch- with their father. The three minors were housed among the unruly teens that have seriously run afoul with the law at a very young age.

The case is a headline-grabber and we here at the Law Blogger expect that it will acquire some national media legs by the weekend now that Fox2 News broke the story on their evening newscast last night.

The facts are simple enough: after a series of protracted court hearings to litigate parenting issues, the children were ordered to spend time with their father; when they refused, they were confined to the Village for civil contempt of court. Family law judges do have powers over all those folks under their jurisdiction, including both parents and all the children in a divorce proceeding.

This case is different because it features putting the children, rather than the recalcitrant parent, into confinement. Judge Gorcyca, no doubt frustrated when the siblings became obstructionist -perhaps with their mother's encouragement- elected to exercise some of that power as a sanction for the contempt shown for her parenting order. Were other options available on the family judge's menu? Yes, of course there were; but this is the one she chose.

Over the years, we have seen the dynamic of older children faced with court-ordered parenting schedules they deem onerous. The well known rule-of-thumb in the industry is that the older the child, the more difficult it is to get him or her to comply with a distasteful court order.

But the Tsimhoni children are relatively young [ages 14, 10 and 9]; apparently, they banded together in defiance of the judge. This defiance has been honed from protracted disputes between the parents for the past five years.

The Tsimhoni case, grinding on since December 2009, features a long-list of family court professionals well-known in the industry, brought into the divorce proceeding to assist with the deep-seated and seemingly irresolvable parenting disputes. The case has featured pitched allegations of parental alienation and kidnapping.

Here is a copy of the GAL William Lansat's report to the family court judge, posted online as the story was breaking. The GAL report sets out the context within which the judge made her decision.

When an emergency motion to readdress the children's incarceration was denied by Judge Gorcyca, an appeal was lodged and a petition for a writ of habeas corpus was filed Monday by the mother's new law firm. A petition for habeas corpus alleges that a person is being incarcerated by the state in violation of a constitutional right.

Even though Judge Gorcyca, obviously frustrated by the children's defiance of her parenting order, placed the children into the Village until they emancipate at age 18, we predict they will be released shortly. The question here is whether their inevitable release comes at the hands of Judge Gorcyca or through some other jurist.

Family court judges have vast powers at their disposal. This case will stand as an example of the measured limits of those powers.

July 9th Post Script: As we predicted, a two-hour hearing was conducted by Judge Gorcyca yesterday, which concluded with her ruling that all three children should be released from the confinement of Children's Village.

For those among our readers that are students of the family court and for the family law professionals, here are two comprehensive articles in the Detroit News that provide a more detailed context for the judge's decisions in the Tsimhoni case. Take a look here, and here. Of course, the two top writers for the Freep joined in: Brian Dickerson and Mitch Albom. The Observer published an interview with the father.

The case, now making huge traction on the State Bar of Michigan's family law listserv, features articles that have posted large chunks of the critical hearing that led to the children's commitment to the Village. Here is an example from the Daily Tribune.

September 9th Post Script: Continuing to deliver headlines, this case featured a hearing today that resulted in the Court being advised that the Tsimhoni children successfully completed their court-ordered stint in a summer camp, have completed intensive therapy for parental alienation, and have been reunited with their father. The court has scheduled a hearing for October to determine whether Mother's physical custody of the children should be switched to Father. The court file remains sealed.

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