Tenure Commission to hear Post's case

HUDSONVILLE, Mich. (WOOD) - More than a year after throwing an attorney in jail for telling his client to exercise his rights, the case involving Ottawa County Judge Kenneth Post will go before the Judicial Tenure Commission in the first public hearing on the matter.

In December of 2011, then-newcomer attorney Scott Millard showed up in Post's courtroom with his client, who faced a minor in possession of alcohol charge.

When Judge Post asked the young man if he'd used illegal drugs, Millard told the client to remain silent -- something Post clearly did not like, as evidenced by recordings of the court hearing.

Millard was thrown in jail after Post held him in contempt of court. He was released following an emergency order from a higher court judge and the contempt ruling was later overturned.

Millard's attorneys, the ACLU and others then filed a complaint regarding Post with the Judicial Tenure Commission.

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The Judicial Tenure Commission complaint against Judge Kenneth Post (pdf)

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Through his attorney, Post has admitted that his actions were inappropriate and said that he was embarrassed by what happened. But Post has refused though to comment to 24 Hour News 8 in person.

The Judicial Tenure Commission will hear oral arguments on the case Monday in a Detroit courtroom. Sometime following that proceeding, a decision will be made on what sanctions, if any, will be placed on the judge.

It is not clear whether Post will be at the Monday hearing.

24 Hour News 8 plans to be at the hearing. Check back Monday around noon for updates.

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A portion of the hearing during which Millard was held in contempt:

JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?

MILLARD: (My client) is going to stand mute to that question, your honor.

POST:  He's not going to stand mute. He's either going to answer the question or I'm going to remand him to jail.

MILLARD: Your honor -

POST: You can have a seat.

MILLARD: Your honor, I'm -

POST: Sit down.

MILLARD: I'm Counsel, your honor.

POST: I'm encouraged. Both of you sit down.

MILLARD: I'm his attorney, your honor.

POST: I'm encouraged.

MILLARD: (My client) has a 5th Amendment right.

POST: Counsel, I'm setting bond. There's two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I'll remand him to jail until such time as he's clean and then we'll go from there.

MILLARD: And I -

POST: Would you please be quiet? I really appreciate that. Thank you.

MILLARD: I apologize.

POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.

MILLARD: Your honor, (my client) has a 5th Amendment -

POST: I'm not charging him with using controlled substance, Counsel. He's not charged with that charge. I'm interested in getting a clean, honest bond response. Now, if you don't want to do that, you can leave. Your call.

MILLARD: (My client) has a 6th Amendment right to assist, effective assistance of counsel.

POST: That's right. And that's not what he's getting at the moment.

MILLARD: Your honor, I strongly disagree with that.

POST: I'm glad.

MILLARD: I've been nothing but respectful and I will always be respectful to the bench.

POST: Then would you please let him answer my questions?

MILLARD: (My client) has a 5th Amendment right not to make admissions, and, your honor, the manner in which this proceeding is being conducted, strongly has the, at least I'm getting the sense that it threatens to tread on that 5th Amendment right.

The judge and the attorney went back and forth for a bit on the 5th Amendment, the court's ability to order drug testing and the attorney's suggestion to set a date for his client to take a drug test. Then --

POST:  I'm not interested in what you think. Haven't you gotten that yet?

MILLARD: I have gotten that, and I... understand that, and your honor, the court fully, certainly has the right to not care what I say. How --

POST: Thank you. Then be quiet. ... (Then, to the defendant) When was the last time that you, the date that you last used controlled substances, sir?

Millard interrupted and stopped his client from answering.

POST: One more word, and I'm going to hold you in contempt.

Soon after, as Millard continued to bring up the constitutional protections his client had, Post cited him in contempt and fined him $100. Millard continued to speak up on his client's behalf.

POST: Counsel, I'm holding you in contempt of court. Remand him to the jail.