In May 2023, Michigan Court of Appeals Found That Local Trial Court Judge Showed Bias, Abuse of Discretion and Ignorance of Court Rules

by P.D. Lesko

On May 11, 2023, the Michigan Court of Appeals published an opinion in which a three-judge panel found Washtenaw County Trial Court Judge Tracy E. Van den Bergh’s rulings in a divorce case repeatedly showed bias and abuse of discretion. Further, Van den Bergh was found to have violated court procedures. The Court of Appeals also reversed several of Van den Bergh’s rulings, because she’d neglected to follow Michigan law governing child custody decisions. In its May 2023 Kuebler vs. Kuebler opinion, the Michigan Court of Appeals ruled that Washtenaw County Trial Court Judge Van den Bergh’s errors had adversely impacted the parties involved in a child custody dispute.

In addition, the same Michigan Court of Appeals three-judge panel concluded that Judge Van den Bergh had allowed a court-appointed Guardian ad Litem (GAL) to dictate and modify custody arrangements absent legally-required evidentiary hearings in the Kuebler vs. Kuebler divorce case. The GAL, a personal friend of Van den Bergh’s who had campaigned for her, was appointed by the judge to protect the interests of minor children involved.

Judge Van den Bergh received a copy of the Court of Appeals’ May 11, 2023 opinion in the case of MEGHAN MARIE KUEBLER, also known as MEGHAN MARIE O’NEIL, vs. PAUL ANDREW KUEBLER, as is customary.

Being a judge is a tough job. According to data from the U.S. Dept. of Labor, in 2023 working as a judge ranked among the top 10 most stressful jobs in the U.S., along with working as an ob-gyn or an acute care nurse. However, the difficulties of a judge’s job are offset by the enormous privilege and power judges have. Sometimes, though, judges are arrogant, show bias, are ignorant of, or ignore, court rules, flaunt the law, and abuse their discretion. That’s when the justice system becomes a nightmare for the parties appearing before a judge.

Tracy Van den Bergh was elected in Nov. 2020 to oversee the Washtenaw County Trial Court’s family law docket. She took her seat in Jan. 2021.

While running in 2020, Van den Bergh and her supporters campaigned on her competence and background as a “social worker.” State of Michigan licensing records show Tracy Van den Bergh has never been licensed as a social worker in the state; she studied for her undergraduate and graduate degrees in social work in New York.

Despite the May 2023 Appeals Court decision that found Judge Van den Bergh had abused her discretion, showed bias, violated court rules and Michigan law governing child custody arrangements, after The Ann Arbor Independent published “Local Trial Court Judge Subject Of Complaints To State Judicial Tenure Commission And AG Nessel” in Nov. 2023, Van den Bergh mocked and rebuked the newspaper from the bench.

The judge claimed that the article, which had revealed the existence of the JTC and Attorney General’s office complaints against her, was inaccurate.

Complaints submitted to the JTC in Michigan, unlike in other states, are not made public except in cases where the JTC refers the complaint to the Michigan Supreme Court. In many cases, discipline meted out by the Michigan Supreme Court is also kept secret.

This secrecy allows the Michigan judges who are elected to run for office while keeping secret all complaints filed against them, and to keep secret discipline meted out by the Michigan Supreme Court.

Copies of the complaints filed against Judge Van den Bergh were provided to the newspaper.

Judge Unhappy That JTC Complaint Made Public

The A2Indy’s Nov. 2023 article had revealed that in March 2023, the lawyer of a disabled veteran seeking a divorce and joint custody of his two young children had filed complaints with the Judicial Tenure Commission (JTC) and Michigan Attorney General Dana Nessel alleging that Van den Bergh showed bias and abuse of judicial discretion in the matter of Tanha vs. Mathieu.

The complaints filed by David Mathieu’s attorney Alexander Benson had been submitted to the Michigan JTC as the Michigan Court of Appeals was deliberating the Kuebler vs. Kuebler case.

During a public hearing shortly after the newspaper’s Nov. 2023 article was published, and just months after the Court of Appeals had delivered its May 2023 Kuebler vs. Kuebler opinion to Van den Bergh, the Judge rebuked The Ann Arbor Independent from the bench for publishing the article about the complaints of bias and abuse of judicial discretion filed by lawyer Alexander Benson. Between Dec. 2021 and Jan. 2022, Benson represented Dave Mathieu in his divorce proceedings before Judge Van den Bergh.

In an email to his client shared with the newspaper and published in the Nov. 5, 2023 article, Benson wrote to 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.”

Judicial ethics permit a judge to use the public’s time in the courtroom to refute newspaper coverage of a judge’s actions and decisions.

More Bias and Abuse of Discretion?

Dave Mathieu’s ex-wife Marieh Tanha is employed as an Asst. Prosecutor by the Washtenaw County Prosecutor. Benson’s accusations of bias and abuse of discretion on the part of Judge Van den Bergh stemmed from Van den Bergh’s alleged personal relationship with Tanha and Tanha’s attorney, Nik Lulgjuraj. Campaign finance records revealed that among the many lawyers who contributed to Van den Bergh’s 2020 campaign for the Trial Court, Lulgjuraj was a top contributor.

The judiciary is not subject to FOIA, but the County Prosecutor’s employee communications can be obtained using public records requests. Tanha’s emails revealed that she’d had communication with Van den Bergh during the divorce proceedings. Tanha and Van den Bergh’s emails did not discuss the divorce case.

Video recordings of the 2023 proceedings in the Tanha vs. Mathieu divorce provided to the newspaper show rulings and decisions requiring Mathieu to undergo (and pay for) a psychiatric evaluation. The newspaper was provided a copy of the psychiatrist’s findings: Mathieu’s previously diagnosed anxiety disorder was noted, but no other psychiatric conditions are diagnosed. Regardless, Van den Bergh required Mathieu to pay thousands of dollars for supervised visitation with his children.

In another ruling seemingly designed to perpetuate the unsubstantiated allegations made by Mathieu’s ex-wife Marieh Tanha that Mathieu presented a threat to his wife, Judge Van den Bergh ruled that David Mathieu had to pay for and participate in a class for domestic abusers who have been convicted, and who are on probation.

Tanha’s unsubstantiated allegations also resulted in a PPO against her ex-husband.

Yet, in a video of sworn testimony provided to the newspaper, Marieh Tanha confirmed to Judge Van den Bergh her husband had never physically abused her or their children. Nonetheless, Van den Bergh renewed the PPO Tanha had obtained a year earlier, and ordered Mathieu to participate and pay thousands of dollars for supervised visitation.

When the clinical social worker overseeing the Catholic Social Services class for convicted domestic abusers on probation concluded the course and coursework were inappropriate, because David Mathieu had never been charged with, or been convicted of domestic violence, Van den Berg brought the social worker into court. The judge proceeded to “destroy the social worker’s credibility, and to question her expertise,” said Mathieu in an email. “I felt so sorry for the woman,” he added.

That social worker, who has the same educational credentials in social work as Judge Van den Bergh, had, in essence, exposed the farce being played out in Van den Bergh’s courtroom. A farce whereby a Trial Court judge and an Asst. County Prosecutor, abused the law to label an innocent man a domestic batterer.

In addition, a video of Mathieu’s most recent hearing shows four Sheriff’s deputies in Van den Bergh’s courtroom, there at her request. One of the deputies positioned himself behind Mathieu. Mathieu alleges there were an additional two Sheriff’s deputies stationed in the hallway outside of Van den Bergh’s courtroom.

“Six deputies for a man with no criminal record is something I’ve never seen or heard of,” said Mathieu, a former police officer, in an email sent on Dec. 23, 2023. “This is police intimidation.”

In the Trial Court, retired Sheriff’s deputies are employed to provide security in the Trial Court building and in the judges’ courtrooms. As a rule, one or two deputies are stationed in the individual judges’ courtrooms, and none are stationed outside of a judge’s courtroom.

Abusing Zoom Technology and Thwarting Transparency

In a private breakout room Zoom video sent anonymously to The A2Indy, Judge Van den Bergh can be heard continuing to complain about the newspaper’s coverage of the JTC complaint filed against her. In the breakout room video, Van den Bergh again complains to the two lawyers and the GAL present that the newspaper’s article that revealed the JTC complaint against her was factually inaccurate.

Court proceedings, for the most part, are public as are most court records. Most hearings are open to the public, and the public may obtain video recordings of public hearings.

In Zoom hearings, Private Breakout Room discussions are subject to Michigan Court Rules, and those rules state, “In Zoom, courts can allow an attorney to meet with their client in a breakout room.”

When she ran for the Trial Court in 2014, Van den Bergh made a point to stress her commitment to “transparency.” Her use of a Zoom private breakout room during a public hearing to secretly complain about news coverage of the JTC complaint filed against her, is the antithesis of transparency.

In the same video, Van den Bergh goes on to brag that Michigan AG Dana Nessel will never investigate her.

An official from the Michigan Attorney General’s office contradicted Judge Van den Bergh. “All judicial corruption and malfeasance is taken seriously and investigated. No judge is above the law.”

In the Dec. 2023 Zoom breakout room meeting Judge Van den Bergh also boasted that in her short time on the bench she has had “numerous” complaints filed against her with the Michigan Judicial Tenure Commission. Judge Van den Bergh then told the lawyers and the GAL present in the secret meeting that the majority of the complaints filed against her have been by men, batterers “unhappy” with her rulings in their divorce cases.

This is untrue.

Multiple women seeking divorces, and who have appeared before Judge Van den Bergh, contacted the newspaper after the Nov. 2023 article was published. All the women requested anonymity out of fear of judicial retaliation, and two said they intend to file JTC complaints. Public Trial Court records were used to verify the women’s appearances before Judge Van den Bergh in divorce proceedings. One woman objected to a GAL appointed by Van den Bergh. That individual is lawyer Elizabeth Janovic, the domestic partner of Trial Court Judge Carol Kuhnke.

“Janovic was allowed to make unilateral decisions regarding custody,” said one mother whose time with her children had been curtailed.

This is the same legal mistake the Michigan Court of Appeals cited in its May 11, 2023 opinion in which Judge Van den bergh was found to have violated court procedures. GALs make “recommendations” to judges, who then rule on the recommendations during hearings at which all parties are present.

A Great Candidate for the Trial Court…on Paper

As a lawyer, Tracy Van den Bergh was a staunch advocate for the disadvantaged, particularly women. Her biography posted to the Trial Court website says she was a “supervising attorney at Legal Services of South Central Michigan” where she “provided comprehensive legal services to over 1,000 disadvantaged Washtenaw County residents.” Tracy van den Bergh also holds a Master’s degree in Social work from NYU and has experience as a Social Worker who “diagnosed and treated children, adults, and families struggling with substance abuse and mental health issues.”

On paper, Tracy Van den Bergh was a good candidate for the seat on the Washtenaw County Trial Court. In 2014, she ran for the Court to fill the seat of the Probate Court judge. In an interview, Van den Bergh drew a sharp distinction between her progressive views and the conservative views of the opponent who went on to beat her, Trial Court Judge Julia Owdziej.

However, despite Van den Bergh’s education, legal experience, stellar work ethic and background, in a three-way primary race, and with a war chest that topped $100,000, Van den Bergh beat her two primary opponents by a small margin. In the November 2020 General Election, she beat local attorney Nick Roumel by just under 10,000 votes out of the over 150,000 votes cast. Roumel is the husband of Trial Court Juvenile Division Referee Gail Altenberg.

The Appeals Court opinion confirms that Judge Van den Bergh’s lack of knowledge of court rules, Michigan Child Custody law and the legal limitations of appointed GALs has adversely impacted a couple seeking to dissolve their marriage, as well as children involved in a custody dispute between their parents.

On November 1, 2023 The Michigan Supreme Court adopted the Michigan Continuing Judicial Education Rules. Beginning on January 1, 2024, every judicial officer must complete 24 hours of continuing legal education every two years.

In an unpublished Jan. 2024 opinion, the Michigan Court of Appeals refused to find Judge Van den Bergh showed bias and abused her discretion when she ordered the mother of a 3-year-old child to travel with her son to Boston from Ann Arbor 16 weekends per year to fulfill visitation requirements. In addition, the Court of Appeals refused to find that Judge Van den Bergh had misapplied the law while calculating child care costs or that the GAL in the case (Janovic) had showed bias toward the mother.

A local lawyer who asked to remain anonymous because they appear frequently before Van den Bergh, said that the KUEBLER v. KUEBLER opinion could be used by others to challenge Van den Bergh’s rulings in past and future divorce cases.