DECISION DIVIDED JUSTICES

TRAVERSE CITY - Months passed in silence as District Judge Thomas Gilbert
presided over a courtroom, barred from hearing alcohol or marijuana cases after
he admitted he smoked marijuana at a rock concert.

But behind the scenes a dispute raged among justices of the Michigan Supreme
Court over what punishment would befit the judge and whether orders from the
court should have become public as early as April.

In an order released last week, Justice Elizabeth A. Weaver argued that the
process of investigating and punishing judges should be more transparent.

"The court's failure to do so will feed existing misperceptions that this Court
acts in secret chambers to 'insulate its own' from the consequences of their
misbehavior and will compound the damage that has already been done to the
public's trust and confidence in the judiciary," Weaver wrote.

Weaver called for Gilbert's removal from office for his admitted use of
marijuana at a Rolling Stones concert in Detroit on Oct. 12, 2002 and his
subsequent admission that he used marijuana about twice a year, even while he
was in office.

The remaining justices disagreed. In a 6-1 decision released last week, Gilbert
was suspended without pay for six months and was ordered to participate in a
monitoring program through a state bar judges and lawyers assistance program.

Gilbert's punishment was the result of months of conflict between Supreme Court
justices and the Michigan Judicial Tenure Commission, which in February
recommended Gilbert serve a 90-day suspension with credit for 28 days Gilbert
already spent on paid leave.

According to the court's records in the case released last week, all but two
justices, Michael F. Cavanagh and Marilyn Kelly, rejected that punishment as
too lenient. In April, Gilbert's case was remanded to the tenure commission for
reconsideration.

At that point, Weaver wrote, the tenure commission could have dismissed the
case without action and the public would have never learned of the process that
led to that outcome or about Gilbert's admission that he was at least an
occasional marijuana user.

In Weaver's dissenting opinion written in April, she argued that the state
constitution requires public disclosure when the court issues an order to
accept, reject or modify a commission recommendation, as it issued on April 14.

"The publication of the decisions and dissents is absolutely necessary for the
people to know them and to be able to assess the Court's performance of its
duties," Weaver wrote.

The remaining justices, including Chief Justice Maura D. Corrigan and justices
Clifford W. Taylor, Robert P. Young, Jr., and Stephen Markman, did not agree
and the order was suppressed.

In the Sept. 25 order, Taylor, in an opinion also signed by Corrigan, Young and
Markman, defended the decision to keep Weaver's dissent suppressed until the
Court finally took action.

Taylor argued that to publicly air the case against Gilbert before a final
decision was made could deny justice in the case.

"To have allowed Justice Weaver midstream in this process to announce her
opinion would have compromised these judicial values," Taylor wrote.

"While some in the public may question as unnecessarily tedious the efforts of
six members of this Court to be judicious, I believe that when looked at from a
longer perspective, as it, of course, some day will be, it will be seen as a
situation in which mature guidance prevailed."

Young, who wrote an opinion signed by all of the justices except Weaver, also
defended the suppression of Weaver's dissent.

Young argued that a consent agreement like the one Gilbert negotiated with the
tenure commission is a confidential document.

"I am shocked that our colleague has suggested that her fellow justices have
engaged in a 'cover up' when our suppression orders were necessary to prevent
her from issuing a public denunciation of Judge Gilbert before the process
outlined in our rules had been completed," Young wrote.