Judge: No recusal in Kolodziej case
Spencer-noggle denies motion in ex-assistant AG’S misconduct proceedings
An Isabella County judge denied a motion that she recuse herself from a case involving a former prosecutor accused of misconduct while handling a case in the county’s court system.
Circuit Court Judge Sara Spencer-noggle denied the motion on Monday morning filed on behalf of Brian Kolodziej, who faces two counts of misconduct in office.
Kolodziej, represented now by St. Clair Shores attorney Camilla Barkovic, asked Spencer-noggle to recuse herself from the case over communications the judge had with the case’s prosecutors.
The motion asked Spencer noggle to recuse herself from the case because she demonstrated favoritism for the prosecutors by signing an order on their behalf without the knowledge of the defense team.
“The very existence of the Order suggests that this Court engaged in ex parte communications/actions in connection with this matter,” the motion read. Ex parte refers to communications between a judge and one party at
which the other party is not present
As a result, Spencernoggle showed favoritism towards prosecutors, and state law and the state’s code for judicial conduct demand that she remove herself from the case, the motion said, quoting the code as:
“A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or imminent proceeding.”
A response from the prosecutors called the motion meritless, starting their rebuttal by saying that judges are presumed unbiased absent strong evidence of bias. It also said that the motion cherry picked only part of the state’s judicial code, ending at a period where in the code is actually a comma, reading:
“A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or imminent proceeding, except as follows:
“(a) A judge may allow ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits, provided:
“(i) the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage as a result of the ex parte communication, and
“(ii) the judge makes provision promptly to notify all other parties and counsel for parties of the substance of the ex parte communication and allows an opportunity to respond.”
The response said that the kinds of orders Spencer-noggle signed are common practice in Kent County to allow for the “prompt disclosure of unredacted information to defense counsel.” The case is being handled by the Kent County Prosecutor’s Office.
Spencer-noggle denied the motion, and another motion by the defense asking for disclosure of any communications between prosecutors or any third parties, and herself.
Kolodziej is accused of altering documents and having an inappropriate relationship with a complaining witness while prosecuting a rape case as an assistant attorney general in 2019.
The case involved Ian Elliott, who pleaded no contest to one count of third-degree criminal sexual conduct in August of that year. Less than a month later, Kolodziej resigned his job on what Attorney General Dana Nessel said at the time was either a “quit or be fired” offer from her.
Nessel’s office conducted an internal investigation, the contents of which haven’t been released to the public. She also asked the state police to investigate it as a criminal matter, and asked the Kent County Prosecutor’s Office to oversee the case.
As a result of the internal investigation, the attorney general office dropped charges against two Oakland County men accused of raping a child less than 13 years old.
The criminal investigation ended in December of last year and Kolodziej was charged with two common law counts of misconduct in office, a five-year felony. The case is moving through the Isabella County court system.
Before going to work for the Office of the Attorney General, when it was run by Nessel’s predecessor, Kolodziej was a prosecutor with the Macomb County Prosecutor’s Office.