BY BENJAMIN J. GOHS, EDITOR
Barring a miraculous last-minute write-in campaign, Allen Telgenhof will continue as Charlevoix County’s prosecutor come November—so, why were people protesting him on the sidelines of Boyne City’s Memorial Day parade last week?
According to three of the protesters, who spoke with the Boyne City Gazette by telephone on Wednesday June 1, they are concerned with Telgenhof’s fitness to hold such a powerful office.
“If good men do nothing, evil prevails,” said Greg Karam of Central Lake.
Karam, who said he conducts business in Charlevoix County, is a member of a small group which operates an informational blog called “The Pretty Lie or the Ugly Truth.” (theprettylieortheuglytruth.blogspot.com)
At least seven members and friends of the unofficial concerned citizens group were out holding signs repeating many of the allegations that have been made against Telgenhof since he ran for his first term as county prosecutor back in 2012.
The claims against Telgenhof have included allegations of domestic violence, campaign finance and election law violations, mishandling of taxpayer moneys, perjury, embezzlement, breaking and entering, and destruction of property.
The list of complaints was compiled last year in a request for grand jury investigation into Telgenhof.
The request was considered and denied by Judge Janet M. Allen of Michigan’s 46th Circuit Court.
The complainant Bob Taylor of Bay Township then appealed to the Michigan Court of Appeals.
A small part of the complaint having to do with campaign finance was sent back to Judge Allen by the Michigan Court of Appeals for reconsideration.
Now that the complaint has been dismissed, the concerned citizens group hopes to bring attention to a new potential legal matter that occurred when both Telgenhof and Judge Allen seemingly skirted the law.
Somewhere amidst the filings, Telgenhof—according to critics—improperly sent a 30-page communication to the judge who, in turn, violated judicial ethics by reading the communication.
What they did is called “ex parte” communication.
Recent Case History
According to court documents, the Michigan Court of Appeals remanded allegations regarding election law violations back to Judge Allen’s court.
The issue stems from when Telgenhof originally was a candidate for prosecutor.
According to Taylor’s complaint, once Telgenhof won the election, he failed to file a campaign finance compliance affidavit in addition to failing to account for three late campaign contributions.
As a result, Taylor argued that Telgenhof’s signature on the affidavit indicating that he was in compliance constituted perjury.
There was a conciliation agreement made between Telgenhof and the State of Michigan and no charges were brought because there was no evidence of intent to swear falsely.
However, the court of appeals directed Judge Allen to consider Telgenhof’s intent regarding the election law matter in deciding whether to initiate a grand jury investigation.
It was then that Telgenhof sent the improper communication to Judge Allen.
“After the remand, Mr. Telgenhof served a brief on the court without filing it with the county clerk. This court read the brief before realizing that it had not been filed and served on the party to the case,” Judge Allen wrote in her April 19 opinion on the Michigan Court of Appeals’ remand. “This court then ordered that the brief be served on the complainant (Taylor), and gave the complainant a chance to respond to the filing, and also allowed the subject (Telgenhof) to respond as well.”
In her opinion, Judge Allen found no probable cause to convene the grand juror as requested.
She also addressed the matter of the ex parte communication.
“It is clear that Mr. Telgenhof is not a party to this proceeding. He did not make a motion to intervene or file anything at the time this brief was delivered to the court. While he stated in the beginning that his brief may not be properly filed because subjects of these investigations normally do not file briefs, his brief did not notify the court that it was filed ex parte until the end of the brief following the court’s review of the brief,” Judge Allen wrote.
“This court is required to not permit or consider ex parte communications under Michigan Code of Judicial Conduct Canon 3(4). This court had however read in full the subject’s brief, and has taken measures to redress this error.”
She added, “The subject is also under an obligation not to make ex parte communications to the judge.”
What’s the problem?
According to Judge Allen, these are separate issues.
“The former must be addressed by this court in order to avoid the appearance of impropriety, and the latter is an issue for the grievance commission,” she wrote.
Judge Allen stated that her court has attempted to mitigate any prejudice to Taylor by giving him the chance to respond to Telgenhof’s brief.
“In this court’s view, doing so takes that brief outside of the realm of ‘communications made to the judge outside the presence of the parties,’” Judge Allen wrote, adding that she acted in accordance with the Michigan State Ethics Opinion which suggests a judge who has received a brief by a party not properly filed and served should direct it to be filed and served.
“While Mr. Telgenhof is not a party to this case, this court decided that having the brief filed and served was the best way to mitigate any prejudice or appearance of impropriety that may have resulted,” she wrote.
The finer points
According to the state ethics opinion, if ex parte communication is an isolated incident and the culprit responds quickly to a judge’s order to correct the situation, no further measures nor reporting are required.
As a result, Judge Allen accepted Telgenhof’s first ex parte brief but did not consider the second, legally filed version, in making her decision.
According to the protesters, who included Roger Conaway and Wendy Beal, the judge was wrong in allowing the ex parte communication and said they plan to file grievances against both Telgenhof and Judge Allen as a result.
Ultimately, Judge Allen wrote that Taylor’s complaints against Telgenhof were worse than meritless.
“[T]his court is concerned that these proceedings are devolving into mudslinging that has less and less to do with the actual issues,” she wrote. “It seems that every time complainant (Taylor) submits a new brief, he spends less time addressing legal and factual issues regarding election law, and more time making political attacks on the subject.”
Judge Allen added, “This court is concerned that there may be ulterior, political motives for the timing of this complaint, and complainant all but confirms these suspicions when he notes that the election season for prosecutor in Charlevoix County is underway, and that time is of the essence in proceeding on this complaint.”
Judge Allen stated that, if Taylor was only concerned about seeing justice done for crimes committed, or uncovering potential wrongdoing, the timing of the proceedings would not matter.
“This, along with many other personal attacks in complainant’s brief, leads the court to believe that this complaint is being lodged, at least in part, for political reasons,” she wrote.
In closing, Judge Allen stated that, even if probable cause existed, she would not have convened a one-judge grand jury.
“If there is a concern with election law violations, that channel is the secretary of state,” Judge Allen wrote. “If there is a concern with perjury, generally, or other crimes, that channel is the attorney general—who has already reviewed the issue and declined to prosecute.”
She added, “If there is a concern about the subject’s character and credibility to continue to act as prosecutor for Charlevoix County, the proper channels are the media and the ballot box.”
Telgenhof was the only person to file to run for prosecutor by the April 19 deadline.
A write-in candidate could file with the Charlevoix County Clerk’s Office by the July 21 deadline but their name would not appear on the November ballot.
Telgenhof did not respond to a request for comment on this story.