District Judge and Clarkston resident Dana Fortinberry could soon be censured because of a letter she wrote in 2004 if the Michigan Supreme Court agrees to terms of a settlement between her and the Michigan Judicial Tenure Commission.
The Michigan Judicial Tenure Commission recommended to the Michigan Supreme Court earlier this month that Judge Dana Fortinberry of 52-2 District Court receive public censure for engaging in misconduct contrary to the Michigan Code of Judicial Conduct. The hearing on judicial misconduct charges scheduled for Nov. 28 was adjourned.
According to a Nov. 28 press release from the Tenure Commission, Fortinberry, through her attorney Thomas Cranmer, worked out a settlement with the commission.
The ruling stems from Formal Complaint No. 78 filed against Fortinberry on May 10 by the Tenure Commission. The complaint stemmed from a July 2004 letter Fortinberry sent to Dave Curtis, vice president of the Oakland County Deputy Sheriffs? Association.
The five-page letter, regarding the association’s endorsement of Kelley Kostin rather than Magistrate Colleen Murphy who Fortinberry endorsed, was sent prior to the August judicial primary. In the letter Fortinberry raised questions about the death of Robert Kostin’s wife, Judith Kostin; and how the subsequent police investigation afterwards, which ruled the death a suicide, was conducted.
Fortinberry responded to the formal complaint on May 20. On May 31, the Michigan Supreme Court appointed the Honorable Robert A. Benson to act as the master in this issue. The hearing previously scheduled on Aug. 8 was adjourned to Nov. 28 due to scheduling conflicts.
‘I am pleased that the parties were able to negotiate a resolution of this matter,? said the commission’s Paul Fischer in the press release.
‘I’m hopeful the Supreme Court will approve the agreement because I think it is an appropriate resolution of the complaint,? said Cranmer.
When asked, Fischer said that a public censure is a reprimand.
?(If the settlement is accepted), it would be a finding by the Michigan Supreme Court that the judge did participate in judicial misconduct. This is the lowest form of sanction,? he said. ‘If they approve this, the matter is over.?
Fischer explained the Supreme Court still could decide to dismiss, accept or modify the recommendation, but made no comments about the likelihood of any of the alternatives.
If the Supreme Court decides to modify the recommendation, Fortinberry could face stiffer penalties than censure such as suspension or removal from her seat in 52nd District Court.
‘The most important part is the relationship between Kostin and Fortinberry. I think the most important thing is they’re getting along and serving the citizens of Oakland County well,? said Cranmer
‘I think it’s important we put this behind us’The longer the matter went unresolved, it had the potential to undercut that relationship further,? he added.
‘I’m satisfied she admitted wrong doing,? said Judge Kelley Kostin after learning of the settlement.
As part of the settlement agreement, Fortinberry admits in July 2004 she wrote a letter with a number of factually untrue statements and that she made no attempt to verify before repeating. She also admits she ‘intended the representations in her July 20 letter to raise questions regarding the moral fiber of both Robert Kostin and Kelley Ott Kostin.?
In Fortinberry’s official response to the complaint, First Amendment rights were cited in her defense. The Commission, however, ruled that Fortinberry’s false allegations were not entitled to First Amendment protection in the following section of the agreement.
‘As noted, this conduct is sanctionable under the First Amendment because the Respondent sought to accomplish her desired end by making false statements about the White Lake Township police investigation, which officially determined that Judith Kostin’s death was a suicide.
‘The impropriety of Respondent’s conduct is compounded by the fact that Respondent made false statements within a letter designed to influence the outcome of a judicial election. In the Commission’s view, Respondent’s act of recklessly publishing false statements about the nature and results of a police investigation in an attempt to disparage a candidate for public office was improper and irresponsible conduct of a nature sufficient to erode the public’s confidence in the honor and integrity of the judiciary.?
Despite reprimanding Fortinberry, the commission did acknowledge the current state of the court:
‘The Commission is mindful that Respondent and now Judge Kelley Kostin appear to have been able to work together amicably and professionally on the 52-2 District Court bench. The Commission commends both of them for being able to put the interests of the public and the institution of the judiciary above any personal rancor they may harbor.
‘The Commission does not want to exacerbate the status quo by recommending that Respondent be suspended as the consequences of any suspension would have an impact on the administration of justice in the Respondent’s court.?