Updated 11/7/23: The explanation of how a Guardian ad Litem is assigned and paid has been expanded.
by P.D. Lesko
The Ann Arbor Independent received documents that show the Honorable Tracy E. Van den Bergh of the Washtenaw County 22nd Circuit Court is the subject of a complaint filed with the Michigan Judicial Tenure Commission (JTC) and another complaint filed with Michigan AG Dana Nessel. Judge Van den Bergh, who ran twice for the 22nd Circuit Court, won her seat in Nov. 2020. The complaints stem from the same case involving a lawyer who works for the Washtenaw County Prosecutor’s office, Marieh Tanha. Court records show that Tanha and her husband David Mathieu sought a divorce in Dec. 2021.
Copies of the complaints naming Judge Van den Bergh were provided to the newspaper.
According to information provided by the JTC, since 1971 only a handful of Michigan judges have been the subject of multiple complaints. Of judges who have been the subjects of multiple complaints, all the complaints filed were in different years. Public records show that no Michigan judge has ever been the subject of multiple complaints in a single year. Over the past 40 years, the JTC has made public the outcomes and judicial discipline of 106 complaints. JTC recommendations for discipline trigger a public hearing and the Michigan Supreme Court has the final say. Letters of reprimand issued by the Michigan Supreme Court are confidential; the removal or suspension of a judge is made public. Several state judicial conduct commissions summarize their private dispositions in their annual reports. Michigan’s JTC does not.
According to the National Center for State Courts, in 2022 across the U.S. there were “138 public dispositions in state judicial discipline proceedings.” Of those, 6 judges were removed from office and 27 judges publicly agreed to resign or retire and never serve in judicial office again. Seventy-two judges (or former judges in approximately nine cases) received public censures, reprimands, admonishments, or warnings, with training, counseling, mentoring, or other remedial measures.
In 2016, Tracy Van den Bergh ran and lost in a crowded field against incumbent 22nd Circuit Court probate judge Julia Owdziej. In 2020, Van den Bergh, and attorneys Nick Roumel and Amy Reiser squared off in the August primary election to fill a vacant seat on the Trial Court. Van den Bergh captured 35.41 percent of the primary election vote and Roumel pulled in 34.17 percent of the vote. Roumel (the husband of Circuit Court Magistrate Gail Altenburg) and Van den Bergh then proceeded to the General Election in Nov. 2020. In that election, Van den Bergh edged our Roumel with 53.12 percent of the vote (80,083 votes). She took her seat on the Trial Court in Jan. 2021.
The judicial complaint process is normally confidential with pending complaints hidden from the public. In some cases, discipline meted out by the Michigan Supreme Court is also hidden from the public. According to the JTC website: “In cases involving allegations of serious misconduct, the Commission typically institutes public proceedings after the preliminary investigation is complete. When these proceedings are instituted the Examiner files a complaint based on the authorization of the Commission, which constitutes a formal statement of the charges, and the matter becomes public.”
In 2022 David S. Mathieu, a disabled veteran, former police officer and a father of two, approached The Ann Arbor Independent with evidence that Marieh Tanha–his soon-to-be ex-wife–a lawyer employed in the County Prosecutor’s office, had allegedly defrauded the County while working remotely. He also claimed the County Prosecutor’s office had covered up the fraud. Tanha, Mathieu alleged, had been relegated to processing Freedom of Information Act requests. Mathieu also claimed to have evidence that Judge Tracy Van den Bergh had a friendship with his wife, and that the two women served on a committee together. This, said Mathieu, was why in Jan. 2022 he had asked his lawyer to submit a Brief in Support of the Plaintiff’s Motion to Disqualify the judge.
Judge Van den Bergh ruled against the Motion to Disqualify. Judges rule against such motions regularly.
David Mathieu’s attorney Alexander Benson has been practicing law for over three decades. When reached by phone Benson said, “I have clients who worry about judicial favoritism and I always say, ‘Not gonna happen. Too many eyes watching.'” Benson added, ” In the Mathieu case, if Nik Lulgjuraj had asked Judge Van den Bergh to throw me in jail because of the kind of tie I was wearing, I swear she would have done it.” Lulgjuraj represented Marieh Tanha in her divorce proceedings.
Campaign finance reports show Lulgjuraj donated twice to Van den Bergh’s campaign for judge. Other attorneys donated as well, but Lulgjuraj’s donations put him among Van den Bergh’s top attorney donors. There is no record of any campaign donation to Van den Bergh from Marieh Tanha or David Mathieu.
At a Jan. 18, 2023 Motion Hearing heard by Judge Van den Bergh, Marieh Tanha testified under oath that “a reporter had contacted her ‘boss’ to say she (Tanha) had perjured herself.”
Tanha went on to testify that the same reporter had submitted a Freedom of Information Act seeking public records about her. That legal request, Tanha told Judge Van den Bergh, had “frightened her.”
The only contact between the newspaper and the Prosecutor’s office related to Marieh Tanha was a Freedom of Information Act sent to Prosecutor Eli Savit on Nov. 11, 2022 to obtain “A complete list of prosecution cases assigned by the County Prosecutor’s Office to Marieh Tanha between Jan. 1, 2020 and Dec 31, 2021; Monthly payroll records (including hours worked and gross pay received) for Marieh Tanha for 2020 and 2021.” The response to that portion of the FOIA was that the Prosecutor’s Office keeps no records of how many hours assistant prosecuting attorneys work.
No one from The Ann Arbor independent phoned Tanha’s “boss” to claim she had perjured herself, as Tanha swore under oath.
In addition to offering up evidence that Tanha had allegedly defrauded the County, her husband alleged she had been demoted to fulfilling FOIA requests after an investigation into her remote working. Tanha is listed on the Prosecutor’s website as one of two FOIA coordinators.
The newspaper’s Nov. 11, 2022 FOIA included this language:
“If Ms. Tanha is your office’s FOIA Coordinator, or deals with the production of public records in any way, I would ask that she not have anything to do with the processing of this FOIA request, the redaction of the requested public records, and/or the assessment of search, locate and redact fees that may be imposed (though, as you know, such fees are not mandated by the Statute).”
In a video recording of a Jan 18, 2023 Motion Hearing, Tanha can be seen complaining to Judge Van den Bergh that the A2Indy’s Nov. 11, 2022 FOIA request had been submitted “on behalf” of David Mathieu to “harass her.” She went on to claim that “her boss had told her of” the legal Freedom of Information Act submitted by the newspaper to obtain public records. Tanha also told the judge she was fearful if the information from that FOIA were to be made public.
Trial Court records about public prosecutions Tanha may have handled are readily available online. Marieh Tanha also testified to the judge that the Freedom of Information Act had targeted Van den Bergh.
In Michigan, the judiciary is not subject to the Freedom of Information Act directly. However, emails sent by a judge to a public employee outside the judiciary are subject to the Freedom of Information Act. Washtenaw County turned over the emails sought in the Nov. 11, 2022 request. There were emails between Tanha and Van den Bergh, but no emails that contained any mention of the divorce proceedings. The newspaper did not FOIA Tanha’s work and cell phone logs to determine if Tanha had phoned Van den Bergh at any time over the course of the proceedings.
Judge Van den Bergh made no effort to corroborate Tanha’s assertions made at the Jan. 18, 2022 hearing. The judge ignored Tanha’s claim that public records of public prosecutions could put a public prosecutor in danger.
Since 1900, in the U.S. one public prosecutor has been killed as the direct result of a prosecution. In contrast, since 1867 six federal judges have been killed in office and, in 2022 alone, 67 journalists have been murdered.
“Obvious Bias and Judicial Indiscretion”
When asked if he has ever filed a complaint against a judge with the JTC, Alexander Benson said, “Not once.”
Between Dec. 2021 and Jan. 2022, Mathieu paid Benson for his services. After Mathieu ran out of money for legal fees, Benson says he represented David Mathieu free of charge. Once the divorce decree was signed, Benson bowed out.
In an email to his client shared with the newspaper, Benson wrote to David Mathieu: “There is no doubt in my mind that the relationship between the Guardian ad Litem, defense attorney and your ex-wife have precluded you from getting a fair shake before the Judge. At this point it is too stressful for me at 61 years old to fight with her. Clearly she knows she is wrong and it is why she gets so upset with me when I let her know she is wrong. That said; I can’t change the outcome at this point. Never seen anything like it… terrible.”
In his complaint against Judge Van den Bergh, attorney Alexander Benson alleges: “Judge Van den Bergh had a personal relationship with the Defendant (Tanha) and her attorney (Nik Lulgjuraj). She failed to disclose this relationship nor recuse herself despite a motion to do so.” Benson also said in his complaint: “I have never seen such obvious bias and judicial indiscretion and favoritism.”
In 2010, Benson was, himself, the target of a complaint about his professional conduct. Benson was disciplined; his license to practice law was revoked for one year.
The Guardian ad Litem (GAL) referred to by Benson is Katherine M. Sharkey. She is a lawyer who specializes in family law. She is also a former professional colleague of Judge Van den Bergh. In the case of Sharkey, Judge Van den Bergh’s former colleague was appointed as the Guardian ad Litem in the Mathieu vs. Tanha divorce case. GALs set their own hourly rates, decide how many hours they will work on a case assigned by the presiding judge and are paid by the litigant(s) ordered by the presiding judge to do so.
Mathieu says, “The judge ordered [me] to go to Catholic family service and pay hundreds of dollars and attend classes for real criminals, people with actual criminal records, with parole officers. I have no criminal record.”
According to Dave Mathieu, the counselor leading the class at Catholic Social Services told him he did not belong in the class.
“After several sessions of just listening and not being able to participate,” said Mathieu, “the counselor asked me ‘Why did the judge make you take this class when you obviously don’t belong here?'”
Mathieu says the counselor did not make him complete the class, but rather released him from the class.
In addition, without any testimony or report from a psychiatrist, Mathieu says Judge Van den Bergh and the Guardian ad Litem (Sharkey), forced him to have a mental health evaluation with local psychiatrist Dr. Craig Lemmen, MD. In 2018, Lemmen was named as a defendant in a class action suit alleging he (and others) participated in a scheme to involuntarily commit individuals to mental hospitals. The suit against Lemmen alleged he violated the civil rights of the individuals who were committed.
“[Judge] Vandenburg ordered me to Dr. Lemmon and I had to pay him thousands of dollars for an mental health assessment. I passed his assessment with no mental health disorder diagnosis,” said Mathieu.
To date, the Michigan Judicial Tenure Commission has not ruled on the multiple complaints filed against Judge Van den Bergh. According to the Michigan Judicial Tenure Commission, there are no Commission complaints pending before the Michigan Supreme Court.
“I know the story of a disabled veteran and his rights/life completely destroyed by a corrupt/extremely biased Family Court judge and her Asst. Prosecutor friend (my ex) isn’t ‘sexy’ or front page news, but I hope what happened to me and my beautiful children over the past two years and counting never happens to anyone else,” said Mathieu in a Nov. 2023 email.
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