Judge Dana Fortinberry has answered the formal complaint by the Michigan Judicial Tenure Commission and denied allegations of violating the Code of Judicial Conduct.
The response is the latest step in an ongoing process which, if found guilty of the allegations, could result in Fortinberry’s removal from office.
Paul Fischer, the executive director of the Judicial Tenure Commission, said the complaint filed contains two counts consisting of charges against the district judge.
Circumstances surrounding the case date back prior to the August 2004 Primary Election. Reportedly in July 2004, Fortinberry wrote a letter to Oakland County Sheriff’s Association Vice President Dave Curtis after the association endorsed Kelley Kostin rather than Magistrate Colleen Murphy, whom Fortinberry endorsed.
According to the two counts, which contain several numbered allegations, Fortinberry made misrepresentations in the July 2004 letter and earlier at a police lodge meeting in March 2004.
In Fortinberry’s response, she admits writing the letter to a friend, which was never meant to become public.
In her response, Fortinberry also admits she wrote: ‘Kelly Ott had an affair with Robert Kostin while he was married to Judie, Judie found out about the affair shortly before her death, and the police investigation was conducted ‘quietly? by the White Lake Township Police Chief.? She also admitted the police investigation was inconclusive and the case closed as a suicide and sealed.
Fortinberry’s statement denies she wrote Judie Kostin’s death was a murder with a cover-up involving Robert Kostin, Kelley (Ott) Kostin and local police officials.
The formal response also states a neighbor, not Fortinberry, said Kelly Ott moved into Kostin’s house less than a month after Judie Kostin’s death.
Fortinberry acknowledged she did not attempt to independently verify the truth of the representations and under the circumstances, had absolutely no reason to disbelieve or question the truth of the representations.
A law enforcement officer and a fellow member of the Bar were cited in the response as providing the statements she admits making.
Fortinberry also admitted she had no firsthand knowledge the police investigation had reached an incorrect result. Fortinberry admitted statements presented in her letter raised questions about the moral fiber of Mr. Kostin and Kelley (Ott) Kostin, but she denies having stated either or both were involved in the Judie Kostin’s death.
Fortinberry’s response cites the First Amendment of the Constitution and Article I, Section 5 of the Michigan Constitution as evidence to bar the complaint against her for engaging in political and/or protected speech.
The response also references Michigan Supreme Court case In Re Chmura, 464 Mich. 58, by stating ‘the complaint does not sufficiently allege that Judge Fortinberry’s purported resentations were false, the Judicial Tenure Commission cannot sufficiently establish the falsity of the purported representations, and/or the purported statements on which the complaint is based are, in large part, statements of opinion.?
The Judicial Tenure Commission requested the Michigan Supreme Court appoint a master to hear and take evidence in the matter and report to the commission.
According to Fischer, the Supreme Court holds jurisdiction for naming a master. Fischer would not speculate on a time frame for the hearing or naming of the master, but said masters are often retired judges. According to the procedural guidelines from the Judiciary Tenure Commission’s website,(http://jtc.courts.mi.gov/) the commission may recommend disciplinary actions against Fortinberry to the Michigan Supreme Court if a preponderance of the evidence shows misconduct.
Matthew F. Leitman, attorney for Judge Fortinberry, was contacted, but did not wish to be quoted.