Judgement Time for a Judge?

Allegations that a judge has shirked his responsibilities underlie the race for probate judge in Antrim County.

By Patrick Sullivan | Sept. 29, 2018

On the surface, the Antrim County probate judge election is a straightforward race between Judge Norman Hayes, an 18-year incumbent, and a well-known challenger, Barry Cole, who has been practicing in the court for decades. Yard signs for each candidate dot the roadside throughout the county.

Under the surface, however, things are murkier. In a turn that’s uncharacteristic for the typically congenial legal community, two retired judges, District Court Judge Michael Haley and Probate Judge John Unger, say they question whether Hayes should serve another term. 

Haley points to Hayes’ refusal to help out with his share of the 86th District Court cases — until Hayes was ordered to do so earlier this year — as reason enough to vote him out of office.

Unger said he’s watched Hayes in action over the years, and he believes Hayes lacks the empathy and humanity that the job requires.

Both of them say voters should be wary of Hayes’ past as the prosecutor of a notorious 1986 Gaylord murder case that resulted in numerous overturned convictions, allegations of prosecutorial misconduct, and cost Otsego County millions of dollars in lawsuit payouts.

Hayes, in emailed comments to Northern Express, said that Haley’s criticism is off base, and that Unger bears a grudge against him — he said he recently cost Unger $24,000. Hayes also defended his actions in that notorious murder case, and maintains that, even after all of the reversals and lost lawsuits, he prosecuted the right people. 

TIME FOR A CHANGE
For his part, Cole said he was motivated to run for the probate judgeship simply because he believes the time is right, and he believes he would be good at the job.

“I really feel it is time for a change,” Cole said. “I think that I can bring a better perspective to the bench, given that I’ve practiced in the probate court for 35 years.”

Cole said he believes Hayes is out of touch because he was a prosecutor for 10 years, then a district judge for 10 years, and since 2000, a probate court judge. He’s never had to show up in court as an everyday lawyer trying to make a living.

Cole said he is aware of the dispute between Hayes and court officials over district court work, and he is familiar with the controversy surrounding the 1986 Jerry Tobias murder case, but he hasn’t made either of those issues in his campaign.

That said, Cole said he would help out with district court cases without hesitation; and he said that people can draw their own conclusions about the Tobias case.

“I’ve made a point of not mentioning any of that in any of my door-to-door stops or my stump speeches,” Cole said. “I think the people that know what it takes to be a good judge, particularly on the probate court, feel that I have those qualities and feel that they are lacking in Judge Hayes.”

Haley said he is only speaking out about Hayes because of the judge’s refusal to volunteer to help out with cases in the 86th District Court following Haley’s retirement in 2015.

When Haley retired, the number of district court judges available to preside over Leelanau, Grand Traverse, and Antrim counties went from three to two.

That happened because of a routine “weighted caseload analysis” conducted by the State Court Administrative Office. State officials found that there were not enough cases across the district to justify three district court judges. The analysis, however, assumed that probate judges would pitch in and handle a share of district court caseload, according to state officials.

That’s what happened in Leelanau County in 2015, where Probate Judge Larry Nelson volunteered to handle district court cases. That did not happen in Antrim County. Hayes refused to handle extra cases; leaving the two remaining district judges, Thomas Phillips and Michael Stepka, swamped and having to do the work of 2.8 judges across the district, according to a SCAO analysis. 

“I AM NOT DOING THAT SHIT”
Hayes’s refusal to take on district court cases led to a showdown at a meeting at the SCAO Lansing office in March.

After Hayes rebuffed numerous attempts to get him to take on district court cases, 86th District Court officials turned to Lansing for help to convince Hayes that it was necessary for him to take a share of the added work.

A meeting was set up between state officials overseeing courts and all of the judges in the circuit and district courts covering Antrim County. At that meeting, Hayes dug in, according to Haley and several people who were familiar with what happened and agreed to speak off the record. When pressed to take over a share of the district court docket, Hayes reportedly said: “I am not doing that shit.”

In April, Stepka, the 86th District’s chief judge, signed an administrative order that compelled Hayes to take some district court cases and, since that time, Hayes has presided over a share of the cases that come through the district.

In an email response to questions about that March meeting, retired Wayne County Probate Court Judge Milton Mack, who now works with SCAO and was at the meeting, wrote: “I met with Judge Hayes on March 9, 2018, to discuss Senate Bill 730 and to secure his assistance in helping with district court cases. Following that meeting he was assigned to hear certain district court cases. It is my understanding that he is providing that assistance.”

The senate bill Mack referred to was introduced in December 2017 by Sen. Wayne Schmidt (R-Traverse City). It would assign district court duties to probate court judges specifically in the 86th District. Schmidt did not respond to a request for comment.

Hayes defended his position in an email to Northern Express.

“I am not a District Court Judge,” Hayes wrote. “I am the elected Probate Court Judge and Presiding Family Court Judge.  The citizens of Antrim County elected two judges for district Court, one of whom has not bothered to preside in Antrim County for months and the other only appears once per month. Yet they receive 1/3 of their salary from Antrim County. There is a difference between the courts and the specialty each requires, for instance would you go to a podiatrist for heart surgery? One judge does not fit all, and besides, the citizens of Antrim County elected two other judges for District Court.”

Hayes also disputed the language others said he used at the meeting in Lansing.

“I have to question your source as to the comments at a private meeting between judges. What I said was ‘I don’t need this crap’ in response to Judges Stepka and Philips and their attempting to get legislation passed without my input.”

Northern Express also asked Hayes to provide names of his campaign supporters who could speak on his behalf, as Haley and Unger had spoken on behalf of Cole. Hayes refused.

“You are apparently unaware that it (is) unethical and a violation of the Canons of Ethics for a judge to personally solicit support from anyone,” Hayes wrote.

“THE MOST IMPORTANT CASE IN HIS LIFE”
Unger served as Antrim County probate judge prior to Hayes, until 2000. When Hayes moved from Otsego County, where he was a district judge, to Antrim County and announced that he was running for probate judge, Unger said he decided to retire. He said he left his name on the ballot, but he did not campaign aggressively and decided to go into private practice.
Since that time, Unger said he has had misgivings about how Hayes has performed as a probate judge. He said he found Hayes’s refusal to work with other judges strange.

“I understand that he’s been a bit intransigent on that issue, which is kind of odd, because he used to be a district judge,” he said.

Unger said he volunteered to work on the campaign to elect Cole because he’s worked enough in Hayes’s courtroom to conclude that Hayes is not a good fit for the job.

“Most people don’t really know what the probate court is there for,” he said. “The interesting thing about the probate court is that virtually everything the court does has to do with people who have some level of incapacity.”

Probate court is not just a place for sorting out wills, Unger said. The court handles guardianships, juvenile cases, adoptions, and parental rights cases. Unger said probate court judges must have some level of empathy for other people, and he said he believes that’s something Hayes lacks.

“I think he simply does not honor the people in front of him,” Unger said. “One of the most important lessons I ever learned as a judge is that cases can become routine and can seem to be routine by judges. That’s human nature. … But the lesson that should be learned is that, for the person in front of you, this is the most important case in his life.”

Hayes said he is not surprised that Unger would be critical of him.
“I defeated Judge Unger in 2000 and just this month sanctioned him $24,000,” Hayes wrote. “I am not surprised he is supporting Mr. Cole.”

Hayes declined to provide details, writing that he believes it would be unethical to comment about a pending case.

Unger said he was not “sanctioned” by Hayes; rather, Hayes entered a judgement against him in a disputed case, a judgement he said he plans to appeal, and said Hayes’ actions in the case are just more reason to question his fitness as a judge.

“There were numerous errors made by the court,” Unger said. 

Unger also questioned Hayes’s dedication to his job. Last year, probate judges in Michigan made a salary of $145,557.74. From Unger’s perspective, Hayes made that salary for basically doing a part-time job.

“The job, to some degree, is what you make it, and how hard you chose to work to make decisions,” he said. “I think it has been practiced here as a part-time job. If you come by the court on an afternoon when there’s no court scheduled, his office is generally dark.”

Hayes insisted that he works a full-time job. “It is a full-time position,” Hayes wrote. “You probably aren’t aware that I hear all domestic relation cases for Antrim County. That is all divorce and custody, paternity, child support, and all personal protection order cases.”

Haley said his criticism of Hayes stems from Hayes’s refusal to help out the other judges who work in the county, not his qualifications as a judge.
“I think if you talk to lawyers, you’re going to hear either neutral or favorable opinions about his decisions from the bench,” Haley said. 

THAT DARK HISTORY
Hayes’s opponents also point to the lawyer’s actions when he was the prosecutor in the Jerry Tobias murder case as a reason to remove him from office.

Why would a 1986 crime have any bearing on a 2018 election? The answer is complicated.

Perhaps most importantly, the Tobias case is probably why Hayes presides in Antrim County, rather than in Otsego County, where he was once prosecutor and district court judge. Unger and Haley said they believe that the Tobias case is the reason Hayes moved all those years ago; at a certain point, Hayes had to stop running for election in Otsego County because voters there felt he had cost them millions of dollars.

“As fallout from the handling of the Tobias case, Hayes and some state cops and various other people were sued, and Otsego County wound up settling those case for millions of dollars, so Hayes was perceived in Otsego County as the guy who cost the county millions of dollars,” Unger said.

That might be old news, and Hayes has won election after election in the years since he faced allegations of wrongdoing in his handling of that case, but this year is the first time Hayes has run since the 2015 publication of a compelling book about the case, one that spent months on the Michigan nonfiction bestseller list.

Traverse City writer Mardi Links’ “When Wicked Takes the Witness Stand” lays out a disturbing portrait of Hayes as a young prosecutor who might have been influenced — by his own personal grudge — to bring a murder case against a Gaylord man.

The book describes leads that were ignored in favor of a shaky theory that a butcher shop owner who may have bullied Hayes and who dated a woman who Hayes admired committed the crime. Hayes insisted the man murdered Jerry Tobias with a chicken skewer in a drug deal gone bad. Later, Hayes prosecuted four other men for the same crime. The book describes a case that was built on flimsy scientific evidence, the testimony of a woman whom Hayes should have known was a liar, and innuendo meant to play to unsophisticated juries.

Hayes got his convictions, but they were later overturned, and his actions as the prosecutor in the case raised serious questions. Notably, however, Hayes was never punished for his actions by the state authorities that oversee attorneys and judges.

Hayes said that he has not read Link’s book.

“Others that have, and that are aware of the true facts of the case, have told me not to bother,” Hayes wrote. “There clearly were mistakes made by law enforcement in that case, but I agree with Mr. Hesselink’s comments.”

Hayes refers to one-time Otsego County Prosecutor Kevin Hesselink, who took over as prosecutor after Hayes and who continued to aggressively pursue charges against the defendants even as the case fell apart. 
Haley said that case alone could be reason to believe Hayes is not fit to serve as a judge. Or maybe not.

“The other thing, in his defense, is that he was a young prosecutor then, and he probably didn’t understand what he was doing,” Haley said.