GRIEVANCE ADMINISTRATOR v FIEGER
Docket No. 127547
Supreme Court of Michigan
July 31, 2006
476 Mich 231
Argued March 8, 2006 (Calendar No. 9).
In an opinion by Chief Justice TAYLOR, joined by Justices CORRIGAN, YOUNG, and MARKMAN, the Supreme Court held:
1. The respondent does not contest that his remarks were undignified, discourteous, and disrespectful.
2. The remarks were made while the case to which they were related was still pending in the Court of Appeals under the ordinary definition of “pending” and the applicable court rules. At
3.
4. The ADB, a quasi-judicial body, has no authority to declare a Michigan Rule of Professional Conduct unconstitutional. Under the Michigan Constitution, the courts alone have that authority.
5. Although challenges regarding the vagueness of
6. The respondent‘s remarks were not protected political speech. The comments made by the respondent were not to communicate information, but were personal abuse. Such coarseness warrants no First Amendment protection when balanced against Michigan‘s strong interest in maintaining a well-respected and fully functional legal system. The contested rules do not preclude the respondent from expressing disagreement, only from abusive comments that go beyond the pale of the rules. The limited restriction the rules place on the respondent‘s speech is no greater than is essential in furtherance of Michigan‘s interest in preserving and maintaining a respected and uncompromised legal system that fosters societal acceptance of and compliance with court decisions. The rules serve to vindicate the interest of the Michigan Supreme Court in the good moral character of the lawyers it has licensed to be officers of the court.
7. The respondent‘s vulgar and discourteous attacks on three members of the Court of Appeals were not constitutionally protected and he may be professionally disciplined for making them. The opinion and order of the ADB must be reversed, and the matter must be remanded to the ADB for entry of an order of reprimand.
Moreover, Justice WEAVER would create an untenable judicial environment within this state. A judge could run for election but could not campaign; a judge could be sued but could not defend himself or herself; a judge could witness misconduct but could not report it; and a judge could be removed from cases at the option of attorneys and litigants. Justice WEAVER would allow only justices who have received Mr. Fieger‘s support, as she has, to decide whether his statements violate standards of attorney conduct, while disqualifying justices who received his opposition.
Reversed and remanded.
Justice CAVANAGH, joined by Justice WEAVER, dissenting, stated that the ADB did not declare
Justice WEAVER, dissenting, stated that she joined Justice CAVANAGH‘s opinion on the substantive issues, but wrote separately to dissent from the participation of Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN in the case. Those justices
Justice KELLY, dissenting, stated that the Attorney Discipline Board has the authority to declare unconstitutional a rule of professional conduct by virtue of authority delegated to the board by the Supreme Court. The board may answer constitutional questions involving attorney discipline by virtue of the power delegated to it by the Supreme Court. The respondent did not violate
- ATTORNEYS — RULES OF PROFESSIONAL CONDUCT.
Michigan Rules of Professional Conduct 3.5(c), which provides that a lawyer shall not engage in undignified or discourteous conduct toward a tribunal, and 6.5(a), which provides that a lawyer shall treat with courtesy and respect all persons involved in the legal process, are not restricted in their application to comments made in a courtroom or its immediate environs.
- ADMINISTRATIVE LAW — ATTORNEY DISCIPLINE BOARD — CONSTITUTIONAL LAW.
The Attorney Discipline Board has no authority to declare a Michigan Rule of Professional Conduct unconstitutional.
Robert L. Agacinski, Grievance Administrator, Robert E. Edick, Deputy Administrator, and Dina P. Dajani, Associate Counsel, for the Grievance Administrator.
Mogill, Posner & Cohen (by Kenneth M. Mogill), Hyman Lippitt, P.C. (by J. Leonard Hyman), Morgan-
OPINION OF THE COURT
TAYLOR, C.J. As a preliminary matter, this opinion addresses the issues raised on appeal in this case. By a separate opinion in this case, the signers of this majority opinion, Chief Justice TAYLOR, Justice CORRIGAN, Justice YOUNG, and Justice MARKMAN, respond to the allegations of Justice WEAVER regarding our suitability to sit in this case.
In this case, we conclude that certain remarks by attorney Geoffrey N. Fieger about the appellate judges who were hearing his client‘s case violated
I. FACTS AND PROCEEDINGS BELOW
In 1997, a jury in the Oakland Circuit Court returned a $15 million verdict in a medical malpractice action in which Mr. Fieger rеpresented the plaintiff Salvatore Badalamenti. On appeal, the defendants hospital and physician claimed that the verdict was based on insufficient evidence and that they had been denied their constitutional right to a fair trial by Mr. Fieger‘s intentional misconduct. After hearing argument, a three-judge panel of the Court of Appeals, JANE MARKEY,
Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that which he had exhibited during the Badalamenti trial and on his then-daily radio program in Southeast Michigan, continued by addressing the three appellate judges in that case in the following manner, “Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss my ass, too.” Mr. Fieger, referring to his client, then said, “He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the finger he should keep is the one where he should shove it up their asses.”
Two days later, on the same radio show, Mr. Fieger called these same judges “three jackass Court of Ap-
Subsequently, Mr. Fieger filed a motion for reconsideration before the same panel. After that motion was denied, this Court denied Mr. Fieger‘s application for leave to appeal on March 21, 2003.3
On April 16, 2001, the Attorney Grievance Commission (AGC), through its Grievance Administrator, filed a formal complaint with the ADB, alleging that Mr. Fieger‘s comments on August 23 and 25, 1999, were in violation of several provisions of the Michigan Rules of Professional Conduct, including
On appeal to the ADB, with one member recused, the remaining eight members of the ADB issued three opinions. The lead opinion, signed by board members Theodore J. St. Antoine, William P. Hampton, and George H. Lennon, concluded that
The sum of all this was that a majority (albeit not the same majority for each issue) concluded that the two rules applied to Mr. Fieger‘s out-of-court statements, while a different majority concluded that those rules were in violation of the First Amendment.6
The AGC, through its Grievance Administrator, sought leave to appeal in this Court. We granted leave to appeal to consider whether the remarks by Mr. Fieger, although uncontestedly discourteоus, undignified, and disrespectful, nevertheless did not warrant professional discipline because they were made outside the courtroom and after the Court of Appeals had issued its opinion. We also granted leave to appeal to consider whether the ADB possesses the authority to decide issues of constitutionality and whether the two rules in question are constitutional.7
We typically review the ADB‘s factual conclusion that an attorney has violated a rule of professional conduct for proper evidentiary support on the whole record. In re Freedman, 406 Mich 256; 277 NW2d 635 (1979); In re Grimes, 414 Mich 483; 326 NW2d 380 (1982). Yet, review of the record for evidentiary support of the factual conclusions is unnecessary here because Mr. Fieger‘s plea agreement did not contest that the remarks were “undignified, discourteous, and disrespectful.” The remaining issues to be resolved are questions of law. We decide de novo the legal issues concerning the ADB‘s authority, construction of the rules of professional conduct, and the constitutionality of these rules. Grievance Administrator v Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000).
III. ATTORNEY LICENSURE AND DISCIPLINE IN MICHIGAN
Indeed, whether this line can be drawn anywhere to take cognizance of the interests of the legal system is the central issue in this case. The proposition asserted by Mr. Fieger is that, under the First Amendment of the United States Constitution, there can be no courtesy or civility rules at all of this sort and that judges and other lawyers assailed verbally, as public figures, have the same remedies any other public figures have in libel and slander law.10 As the opinions of the ADB suggest, the absolutism of this argument is not without some allure.11 Yet, respect for the wisdom of those who have preceded us in the judiciary in this country and the traditions of the legal process counsel that narrow and
The performance of these responsibilities requires a process in which the public can have the highest sense of confidence, one in which the fairness and integrity of the process is not routinely called into question, one in which the ability of judges to mete out evenhanded decisions is not undermined by the fear of vulgar characterizations of their actions, one in which the public is not misled by name-calling and vulgarities from lawyers who are held to have special knowledge of the courts, one in which discourse is grounded in the traditional tools of the law—language, precedents, logic, and rational analysis and debate. To disregard such interests in the pursuit of a conception of the First Amendment that has never been a part of our actual Constitution would in a real and practical sense adversely affect our rule of law, a no less indispensable foundation of our constitutional system than the First Amendment.
More recently, the United States Supreme Court elaborated on this unique status:
As an officer of the court, a member of the bar enjoys singular powers that others do not possess; by virtue of admission, members of the bar share a kind of monopoly granted only to lawyers. Admission creates a license not only to advise and counsel clients but also to appear in court and try cases; as an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court, and for depositions and other pretrial processes that, while subject to the ultimate control of the court, may be conducted outside courtrooms. The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice. [In re Snyder, 472 US 634, 644-645; 105 S Ct 2874; 86 L Ed 2d 504 (1985).]
Michigan has statutorily recognized this status in
The members of the state bar of Michigan are officers of the courts of this state, and have the exclusive right to designate themselves as “attorneys and counselors,” or
It is to this end that our bar entrance requirements look to character as well as competence, and the bar admissions process culminates in a way unprecedented in other professions with the taking of an oath pursuant to
Moreover,
The license to practice law in Michigan is, among other things, a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court. It is the duty of every attorney to conduct himself or herself at all times in conformity with standards imposed on members of the bar as a condition of the privilege to practice law. These standards include, but are not limited to, the rules of professional responsibility and the rules of judicial conduct that are adopted by the Supreme Court.
As contemplated by this rule, this Court has promulgated the Michigan Rules of Professional Conduct. Of
The advocate‘s function is to present evidence and argument so that the cause may be decided according to law. Refraining from undignified or discourteous conduct is a corollary of the advocate‘s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge‘s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence оr theatrics.
Similarly,
A lawyer is an officer of the court, who has sworn to uphold the federal and state constitutions, to proceed only by means that are truthful and honorable, and to avoid offensive personality. It follows that such a professional must treat clients and third persons with courtesy and respect. For many citizens, contact with a lawyer is the first or only contact with the legal system. Respect for law and for legal institutions is diminished whenever a lawyer neglects the obligation to treat persons properly. It is increased when the obligation is met.
As should be clear, these rules are designed to prohibit only “undignified,” “discourteous,” and “disrespectful” conduct or remarks. The rules are a call to discretion and civility, not to silence or censorship, and they do not even purport to prohibit criticism. The wisdom of such rules was recognized by United Stated
Equally pertinent is the Preamble to our Rules of Professional Conduct, “A lawyer should demonstrate respect for the legal system and for those that serve it, including judges, other lawyers and public officials. While it is a lawyer‘s duty, when necessary, to challenge the rectitude of official action, it is also the lawyer‘s duty to uphold legal process.”
It is in this historical and professional context that Mr. Fieger‘s remarks must be reviewed.
IV. ANALYSIS OF THE APPLICABILITY OF THE RULES
A. WERE MR. FIEGER‘S REMARKS MADE AFTER THE CONCLUSION OF THE CASE?
Mr. Fieger asserts that the remarks in controversy were made after the Badalamenti case was concluded. This matter is consequential because greater restraint, if indeed any is constitutionally allowed, is permissible when a case is ongoing than when it is completed. As the United States Supreme Court said in Gentile, supra at 1070, “‘When a case is finished, courts are subject to the same criticism as other people, but the propriety and necessity of preventing interference with the course of justice by premature statement, argument or intimidation hardly can be denied.‘” (Citation omitted.) Accordingly, “the speech of lawyers representing clients in pending cases may be regulated under a less
The obvious question here is whether the Badalamenti case was actually “pending” at the time of Mr. Fieger‘s comments. In answering this question, we are guided both by the Michigan Court Rules and by the ordinary definition of “pending.”
Begun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment. Awaiting an occurrence or conclusion of action, period of continuance or indeterminancy. Thus, an action or suit is “pending” from its inception until the rendition of final judgment.
Mr. Fieger made his remarks on August 23 and 25, 1999, three days and five days, respectively, after the Court of Appeals issued its decision, when the time for filing either for rehearing in the Court of Appeals or an application for leave to appeal in this Court had not yet expired. Indeed, Mr. Fieger ultimately did file a timely motion for rehearing in the Court of Appeals on September 10, 1999.
Because the Court of Appeals decision had not yet become effective as of the date of Mr. Fieger‘s comments, and because the Court of Appeals, by granting a motion for reconsideration or rehearing, could still have affected the substantial rights of his client, we conclude that the Badalamenti case was “begun, but not yet completed” and that Mr. Fieger‘s comments were made “during,” “before the conclusion of,” and “prior to the completion of” that case. Moreover, the case was “awaiting an occurrence or conclusion of action“—namely, the running of the aforementioned periods for
Thus, the Badalamenti case was clearly still pending when Mr. Fieger made his remarks.17
B. DO THE RULES ONLY APPLY TO COMMENTS MADE IN A COURTROOM?
Mr. Fieger next asserts that
In light of this definition, we disagree with Mr. Fieger‘s argument that the rule is inapplicable to his statements because those statements were directed toward an audience and outside a courtroom, and, therefore, not toward a tribunal. Mr. Fieger made remarks about (a) the three judges (b) who comprised the panel (c) that ruled against his client (d) with regard to the content and value of that judgment, (e) which remarks aired on a public broadcast. Even though made outside a courtroom, Mr. Fieger‘s statements attacked the judges in their capacity as judges and in a forum designed to reach both the public and these judges (who were included among the members of the community who could receive this broadcast). Because such comments were “in the direction of” and “with respect to” these judges, they were necessarily comments made “toward the tribunal.”
There is nothing in this phrase “toward the tribunal” that limits the applicability of the rule only to remarks made in a courtroom.18 Mr. Fieger‘s construction of the rule would effectively insert the requirement that the
The construction of the rule asserted by Mr. Fieger fails to accord consideration to the importance the courtesy and civility rules serve as a vehicle for preserving the public‘s confidence in the integrity of the legal process. Most significantly, however, it is a construction that is not in accord with the actual language of the rule. Thus, we agree with the conclusion of the majority of the ADB that
Therefore, we conclude that the comments made by Mr. Fieger are in violation of both
The AGC, through its Grievance Administrator, asserts that the ADB has no authority to declare unconstitutional a rule of professional conduct. We agree.
A disciplinary proceeding in Michigan commences upon the filing of a formal complaint and is heard before a panel of three lawyers. Appeals are then taken to the ADB. The ADB is an administrative body, comprised of nine individuals appointed by this Court, three of whom are not attorneys.20 While the ADB, like all other governmental entities, must operate in accord with the Constitution, for example, on questions such as compelled witness self-incrimination,21 it does not possess the power to hold unconstitutional rules of professional conduct that have been enacted by this Court. As we said in Wikman v Novi, 413 Mich 617, 646-647; 322 NW2d 103 (1982), administrative agencies generally do not possess the power to declare statutes unconstitutional because this is a core element of the “judicial power” and does not belong to an agency that is not exercising this constitutional power. The power of judicial review is one that belongs exclusively to the judicial branch of our government. Lewis v Michigan, 464 Mich 781, 788-789; 629 NW2d 868 (2001).
Should any attorney appearing before the ADB believe a rule itself to be unconstitutional, such as in this case, resort must be made to an appeal to this Court, and, if we concur in this assessment, it is our responsibility to declare such rule unconstitutional. See
VI. ARE MRPC 3.5(c) AND MRPC 6.5(a) UNCONSTITUTIONALLY VAGUE?
Mr. Fieger next argues that whatever the other constitutional shortcomings of
If “civility” and “courtesy” rules can ever satisfy constitutional muster, as we believe they can, it is beyond peradventure that the comments at issue in this case clearly violated such rules.
Mr. Fieger also argues that his remarks are political speech and thus fit within the protection afforded campaign speech in In re Chmura (After Remand), 464 Mich 58, 72-73; 626 NW2d 876 (2001) (Chmura II). In Chmura II we considered the propriety of a variety of remarks made by an incumbent judge during a reelection campaign that had served as the basis for sanction by the Judicial Tenure Commission of our state. We concluded in light of the First Amendment that the
Not only was Mr. Fieger‘s speech not campaign speech, it was not political speech of any kind. In discussing political speech, the United States Supreme Court has stated:
“The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” [Thornhill v Alabama, 310 US 88, 101-102; 60 S Ct 736; 84 L Ed 1093 (1940).] The First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v United States, 354 U. S. 476, 484 [77 S Ct 1304; 1 L Ed 2d 1498] (1957). [Meyer v Grant, 486 US 414, 421; 108 S Ct 1886; 100 L Ed 2d 425 (1988).]
To invite the sodomization of a judge, with a client‘s finger, a plunger, or one‘s own fist, and to invite a judge to kiss one‘s ass can hardly be considered an “interchange of ideas for the bringing about of political and social changes.” “Resort to epithets or personal abuse is not in any proper sense communication of information
Mr. Fieger further urges that his remarks should receive the same broad protection the First Amendment was found to provide in New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964). We disagree because this is an attorney discipline matter and more restrictive rules are permissible in such a circumstance. In Sullivan, the United States Supreme Court created a high standard of proof for a public official seeking civil damages for defamation. Damages can only be recovered if the public figure can prove by clear and convincing evidence that the offending statements were made with knowledge that they were false or with reckless disregard of their falsity. Yet here, we deal with a matter of professional discipline. There is no
Further, that the First Amendment is not offended by Michigan‘s disciplinary rules is suggested by Gentile v State Bar of Nevada, supra at 1071, where the United States Supreme Court stated:
It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to “free speech” an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal. Even outside the courtroom, a majority of the Court in two separate opinions in the case of In re Sawyer, 360 U.S. 622, 3 L. Ed. 2d 1473, 79 S. Ct. 1376 (1959), observed that lawyers in pending cases were subject to ethical restrictions on speech to which an ordinary citizen would not be. [Citations omitted; emphasis added.]
Gentile, supra at 1073, also held that in analyzing whether an ethics rule violates a lawyer‘s First Amendment rights, the court must engage “in a balancing process, weighing the State‘s interest in the regulation of a specialized profession against a lawyer‘s First Amendment interest in the kind of speech that was at
In Sawyer, the United States Supreme Court considered an order affirming the suspension of an attorney from practice because of her attack on the fairness and impartiality of a judge. The plurality opinion, which found the discipline to be improper, concluded that the comments had not in fact impugned the judge‘s integrity. But Justice Stewart, who provided the fifth vote for reversal of the sanction, observed in his concurring opinion that he could not join any possible “intimation that a lawyer can invoke the constitutional right of free speech to immunize himself from even-handed discipline for proven unethical conduct....” Sawyer, supra at 646. He concluded that “[o]bedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech.” Id. at 646-647.
As observed, pursuant to Gentile, supra at 1073, to assess the constitutionality of a rule of lawyer discipline, a court must weigh the state‘s interests in support of the rule against an attorney‘s First Amendment interests in the kind of speech at issue. In this case, we must balance Mr. Fieger‘s right to criticize judges as he did, using foul and vulgar language, against the state‘s interest in the maintenance of a system of lawyer discipline that imposes some measure of limitation on such language.
There is no reasonable construction of Mr. Fieger‘s remarks that could lead to the conclusion that these were mere comment on the professional performance of these three judges of the Court of Appeals. To call a judge a “jackass,” a “Hitler,” a “Goebbels,” a “Braun” and to suggest that a lawyer is “declar[ing] war” on them and that the judge should “[k]iss [the lawyer‘s] ass,” or should be anally molested by finger, fist, or plunger, is, to say the least, not to communicate information; rather, it is nothing more than personal abuse. We conclude that such coarseness in the context of an officer of the court participating in a legal proceeding warrants no First Amendment protection when balanced against this state‘s compelling interest in maintaining public respect for the integrity of the legal process. United States v O‘Brien, 391 US 367, 377; 88 S Ct 1673; 20 L Ed 2d 672 (1968).
As the United States Supreme Court stated in In re Snyder, supra at 647:
It is also the case that our civility and courtesy rules serve to vindicate this Court‘s interest in the good moral character of the lawyers it has licensed to serve as officers of the court.30 Implicit in being an officer of the court is the recognition that ” ‘obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech. ’ ” Gentile, supra at 1071 (citation omitted).31
Mr. Fieger‘s comments then are not protected under his various theories of vagueness, of political speech, or of public-figure comment. It is important, however, to reiterate that we are not now, nor have we ever in the
An attorney owes devotion to the interests of his clients. He should be zealous in the maintenance and defense of their rights, and should be in no way restrained in the discharge of such duty by fear of judicial disfavor. But at the same time he should be at all times imbued with the respect which he owes to the court before whom he is practicing. It is of the utmost importance to the preservation of our system of government that our people have confidence in the integrity of our courts.
The point is that lawyers have an unquestioned right to criticize the acts of courts and judges. In re Estes, 355 Mich 411, 414; 94 NW2d 916 (1959). Moreover, there is no prohibition on a lawyer engaging in such criticism even during the pendency of a case. There are limitations only on the form and manner of such criticism, limitations that serve compelling interests within our constitutional and legal systems.33
Because Mr. Fieger does not contest that
We close by quoting the following remarks of the Ohio Supreme Court nearly a century ago when faced with the same duty to deal with a misbehaving lawyer as we are today:
It is for all these reasons that we conclude that Mr. Fieger‘s vulgar and crude attacks on three members of our Court of Appeals were not constitutionally protected and that he is subject to professional discipline for having made them.
VII. RESPONSE TO JUSTICE KELLY‘S AND JUSTICE CAVANAGH‘S DISSENTS
In their repudiation of “courtesy” and “civility” rules, the dissents would usher an entirely new legal culture into this state, a Hobbesian legal culture, the repulsiveness of which is only dimly limned by the offensive conduct that we see in this case. It is a legal culture in which, in a state such as Michigan with judicial elections, there would be a permanent political campaign for the bench, pitting lawyers against the judges of whom they disapprove. It is a legal culture in which rational and logical discourse would come increasingly to be replaced by epithets and coarse behavior, in which a profession that is already marked by declining standards of behavior would be subject to further erosion, and in which public regard for the system of law would inevitably be diminished over time.34
By allowing a lawyer to say anything short of libel under New York Times v Sullivan, the position of the dissents would also necessarily and inevitably require that judges—persons who are periodically subject to popular reelection under our Constitution—be allowed to engage in the same kind of “free speech” to which attorneys are entitled—if only for the purposes of electoral self-defense.35 Further, such a required loosening of the canons of judicial conduct would also likely have other lamentable effects that could quickly jeopardize even the freedom of speech lawyers currently enjoy. It is hard to imagine the lawyer who would want to test the proposition of how much effect a judge‘s retaliatory comment adverting to the lawyer‘s lack of competence, character, or the like would have on the lawyer‘s practice. Thus, the newly given lawyer right of speech the dissents would recognize would perversely conduce to a situation where lawyers would be silenced. While surely all would hope judges would not use this
VIII. CONCLUSION
For the reasons set forth in this opinion, we reverse the opinion and order of the ADB and remand to the ADB for entry of the agreed-to order of reprimand.
CORRIGAN, YOUNG, and MARKMAN, concurred with TAYLOR, C.J.
TAYLOR, C.J., and CORRIGAN, YOUNG, and MARKMAN, JJ. With her dissent, Justice WEAVER completes a transformation begun five years ago, when all six of her colleagues voted not to renew her tenure as Chief Justice of this Court. This transformation is based neither on principle nor on “independent” views, but is rooted in personal resentment. This transformation culminates today in irresponsible and false charges that four of her colleagues are “bias[ed] and prejudice[d]” against attorney Geoffrey Fieger and therefore must be disqualified from hearing his cases—a cаll that Justice WEAVER, who has received Mr. Fieger‘s political support, seems to believe that she is uniquely privileged to make. See post at 328. But just as troubling, Justice WEAVER‘S personal agenda causes her to advance arguments—adopted wholesale from Mr. Fieger‘s past disqualification motions—that would lead to nonsensical results, affecting every judge in Michigan and throwing the justice system into chaos. We have addressed these
In essence, Justice WEAVER would create an environment within this state that would affect every judge and that would prove utterly untenable. A judge could run for election, but could not campaign. A judge could be sued, but could not defend himself or herself. A judge could witness misconduct, but could not report it. Judges could be removed from cases at the option of attorneys and litigants, who could instigate public attacks and lawsuits against judges to force their disqualification. Judges would be intimidated, subtly and not so subtly, from carrying out their constitutionally ordained duties.
In Justice WEAVER‘s view, only justices who have received Mr. Fieger‘s support—as she has—can decide whether Mr. Fieger‘s public statements (suggesting the sodomization of judges who rule against his client and characterizing such judges as “assholes“) violate Michigan‘s standards of attorney conduct. Judges who have been the object of his opposition would not be allowed to participate. It is interesting that Justice WEAVER largely grounds her arguments of “bias and prejudice” in statements that occurred between six and ten years ago. And, until very late in the process of handling this case, Justice WEAVER—who was well aware of these statements through prior disqualification motions from Mr. Fieger—did not take the position that those statements required our disqualification. One can measure the sincerity of Justice WEAVER‘s accusations today by her own conduct in this case. She claims today that she was compelled to publish her belief that our bias disqualifies us to participate in this case because Mr. Fieger is a “party.” But Mr. Fieger has always been a party in this
It is deeply troubling that a member of this Court would undertake so gratuitously, and so falsely, to impugn her colleagues. This is a sad day in this Court‘s history, for Justice WEAVER inflicts damage not only on her colleagues, but also on this Court as an institution. However, we do not intend to be deterred by false accusations from carrying out our constitutional duty to hear cases, including those in which Mr. Fieger is involved, and to decide these cases fairly and evenhandedly, as we have always done in the past. In particular, we invite public scrutiny of this Court‘s record in cases in which Mr. Fieger, personally, and his clients have been involved.
In making her charges of “bias and prejudice” Justice WEAVER essentially adopts verbatim arguments made by Mr. Fieger in various disqualification motions that each of us has already considered and rejected. However, in light of Justice WEAVER‘s unwarranted characterization of our positions, we explain here why we did so.
I. STATEMENTS CONCERNING MR. FIEGER
Justice WEAVER first focuses on statements made during the campaigns of three of us in 2000. (It is puzzling that Justice WEAVER has never before cited
Under our Constitution, candidates for the Supreme Court are nominated at party conventions and run for election.
These were Mr. Fieger‘s prerogatives. Yet under Justice WEAVER‘s analysis, neither we nor our supporters could exercise our own prerоgatives to ever mention these facts in our campaigns. That is, despite our individual judgments that references by our campaigns to Mr. Fieger‘s opposition would assist the public in understanding our judicial positions, and would effectively contrast these positions with those of the candidates running against us, Justice WEAVER would preclude judicial candidates from communicating truthful statements to the public. In her view, statements concerning the identity of political opposition could never
In perhaps her most troubling premise, Justice WEAVER suggests that a judicial candidate is biased with regard to individuals or organizations identified as opposing his or her candidacy. Yet Justice WEAVER fails to recognize that the reverse would then also be true. Would not a judicial candidate who has received the public support or endorsement of an individual or organization be, by the same token, “biased or prejudiced” in favor of those parties? “Bias or prejudice” is not a one-way street. “Bias or prejudice” can be shown either in favor of or in opposition to an individual or organization. Judges in this state (including each of the justices of this Court) who have run for election have
Indeed, to apply her own rule to herself, Justice WEAVER would certainly be precluded from participation in the instant case in light of the fact that she received financial contributions—the most compelling form of all endorsements—from Mr. Fieger in her most recent campaign.2
In short, Justice WEAVER‘s position has far-reaching implications for judicial selection in Michigan, which
[O]pposition [to judicial elections] may be well taken (it certainly had the support of the Founders of the Federal Government), but the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about. “The greater power to dispense with elections altogether does not include the lesser power to conduсt elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process . . . the First Amendment rights that attach to their roles.” [Republican Party of Minnesota v. White, 536 U.S. 765, 787-788; 122 S. Ct. 2528; 153 L. Ed. 2d 694 (2002) (citation omitted).]
The statements that were made in 2000 were accurate, relevant, and, we believe, entirely fair commentary on aspects of that year‘s judicial election. As was noted in Adair v. Michigan, 474 Mich. 1027, 1042 (2006) (statement by TAYLOR, C.J., and MARKMAN, J.), if a judge does that which the law and the standards of conduct permit, such action cannot ordinarily serve as the basis for disqualification. To hold otherwise would be to make the law into a “snare” for those who are operating well within its boundaries.
There is nothing in these statements made in 2000 that would suggest that Mr. Fieger cannot obtain a fair hearing in our courtroom. We believe that this is underscored by this Court‘s treatment of cases in which Mr. Fieger was counsel, as well as cases in which he was a party himself, over the past seven years. We are content to maintain Michigan law as it has always been; a judge is not automatically disqualified from hearing a case involving those who have been either the judge‘s campaign supporters or opponents.
II. “ENMESHMENT” WITH MR. FIEGER
Justice WEAVER next focuses on the lawsuits that Mr. Fieger has filed against us as justices of this Court. Here, Justice WEAVER again essentially adopts verbatim Mr. Fieger‘s novel theory that a judge becomes “enmeshed” with one who sues him and that, as a result, that judge necessarily must be tempted to “vent his spleen” against the person. Under Justice WEAVER‘S
[Such “enmeshment” exists] only because [Mr. Fieger] by his own actions, specifically by initiating a series of federal lawsuits against me and other Justices of this Court, has so “enmeshed” me. It cannot be that a judge can be required to disqualify himself or herself simply on the basis of such lawsuits. Grace v. Leitman, 474 Mich. 1081 (2006); People v. Bero, 168 Mich. App. 545, 552 [425 NW2d 138] (1988). To allow [Mr. Fieger‘s] lawsuits to constitute a basis for my disqualification because I have thereby become “enmeshed” with him would simply be to incentivize such lawsuits on the part of any attorney or litigant desirous of excluding a disfavored judge from participation in his or her case. [Grievance Administrator v. Fieger, 475 Mich. 1211, 1212 (2006) (statement by MARKMAN, J.).]
Moreover, Justice WEAVER‘s argument that a judge cannot defend himself or herself against a frivolous lawsuit, or attempt to deter future frivolous lawsuits, by seeking sanctions when such lawsuits are brought would merely encourage frivolous lawsuits against judges. Indeed, if anyone can force a judge‘s disqualification merely by suing that judge, then any litigant would have an easy method of judge-shopping, eliminating disfavored judges until the desired judge has been obtained. The destructive effect of such a rule is too obvious to require further elaboration.
In the same “enmeshment” vein, Justice WEAVER cites several occasions on which Mr. Fieger has called us names or impugned us (e.g., “stupid,” never “practiced law,” has a “political agenda“), and again asserts that this has predisposed us against him. Again, Justice WEAVER‘s reasoning makes disqualification available at the instigator‘s sole option. But, it is clearly the law that
[Mr. Fieger] argues that I have been a “target of personal abuse” from him and cannot be fair toward him. Whatever “abuse” respondent may or may not have directed toward me, I have never once called into question the propriety of his conduct. I have never questioned his right to direct any public criticism toward me or to undertake any financial contributions against me in the course of my campaigns for judicial office. Once again, it cannot be that a judge can be required to disqualify himself or herself on the basis of “abuse” that he has allegedly received from an attorney or litigant. To allow such conduct to constitute a basis for my disqualification would again simply be to incentivize such conduct on the part of any attorney or litigant desirous of excluding a disfavored judge from participation in his or her case. [Grievance Administrator v. Fieger, supra at 1212 (statement by MARKMAN, J.).]
It may sometimes be the case that, under circumstances such as these, a judge must conclude that he or she cannot decide a matter impartially. But, for the first 169 years of this Court‘s existence, that decision has always belonged to the justice alone.
III. LETTER REFERENCING MR. FIEGER
Justice WEAVER next focuses on a statement from a fund-raising letter, sent by former Michigan Governor John Engler, that mentions Mr. Fieger‘s nаme.3 How-
Indeed, as this letter indicates, the need for such funds has recently become substantially more intense. Judicial campaigns have become considerably more expensive as an increasing range of interest organizations have come to participate in these campaigns, “independent opposition” campaigns have emerged, and substantial last-minute infusions of opposition campaign spending have appeared, on one occasion on an anonymous basis.4 In 2004, Mr. Fieger, by his own later admission in October 2005, orchestrated just such an anonymous campaign days before the election, spending $460,000 on opposition advertising. Raising money to address such efforts is a new and critical focus of contemporary judicial campaigns. The potential for significant, and well-funded, opposition requires fund-raising to offset the high costs of responding. That a fund-raising letter from a supporter cites these relevant historical facts in order to make more persuasive a plea for campaign contributions does not prevent a judge from faithfully performing his or her sworn duties.
IV. REFERRAL OF MR. FIEGER
Justice WEAVER next cites the fact that one of us referred Mr. Fieger to the Attorney Grievance Commission in 1996. In essence, she faults that justice for complying with attorney ethics rules. The Michigan Rules of Professional Conduct provide:
A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer‘s honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission. [
MRPC 8.3(a) (emphasis added).]
In other words, a judge is obligated to inform the Attorney Grievance Commission about an attorney‘s perceived misconduct; to fail to do so is to violate an explicit ethics rule. This rule does not distinguish between a judge who observes the alleged misconduct and a judge who is the object of it. But, under Justice WEAVER‘s reasoning, a judge must either turn a blind eye to attorney misconduct or risk disqualification. This simply cannot be. On the contrary, a judge who meets his or her ethical obligation to report attorney misconduct is not thereby assumed to be biased or unable to review impartially cases that come before him or her.5
Additionally, our Court—usually with Justice WEAVER‘s participation—has at times directed our clerk of court to refer attorneys to the Attorney Grievance Commission and judges to the Judicial Tenure Commission for investigation. No one has ever suggested that this practice, necessary when attorney or judicial conduct warrants further inquiry, bars justices from later considering either those cases or other cases involving
V. FURTHER OBSERVATIONS
(1) Justice WEAVER, until late in the consideration of this case, did not mention what she now cites as evidence of our actual “bias and prejudice,” statements made during the 2000 campaign. Six years have passed, during which none of us has made any additional statements concerning Mr. Fieger, and during which Mr. Fieger has filed numerous disqualification motions in which he has referenced the same campaign statements from 2000.
(2) In concluding that we have actual “bias and prejudice” toward Mr. Fieger, Justice WEAVER not only professes to read our minds, but intimates that she does so on the basis of access to information not generally available to the public. Neither is true.
(3) Justice WEAVER here departs from her previous practice in which, in numerous cases, she adhered to exactly the rule the majority is maintaining—that a justice resolves his or her own disqualification. In fact, as Justice WEAVER conceded in Advocacy Org for Patients & Providers v. Auto Club Ins Ass‘n, 472 Mich. 91, 96 n 1; 693 NW2d 358 (2005) (WEAVER, J., concurring), she herself has elected not to participate in cases 251 times—a determination reached on each occasion without the participation of any other justice. As recently as June 1, 2006, she declined to decide Mr. Fieger‘s motions for disqualification directed at us in this case, deferring instead to our determinations as the justices targeted by these motions. Grievance Administrator v. Fieger, 475 Mich. 1211 (2006) (statement by WEAVER, J.). Without explanation, she now abandons all her previous practices on this Court and asserts that she may participate in deciding disqualification motions directed at another justice, at her sole discretion.6 (It is also noteworthy that Justice WEAVER‘s particularized concerns about Mr. Fieger‘s disqualification motions began only after Mr. Fieger ceased targeting her with these motions.)
(4) Justice WEAVER‘s concerns about alleged “bias and prejudice,” grounded in large part on statements made in 2000 and a referral to the Attorney Grievance Commission made in 1996—neither of which has ever before been a concern of hers—is of a kind with other newfound concerns: (a) after 31 years on the bench, and, not surprisingly, never having uttered a word in favor of judicial term limits, and with the four of us having become a philosophical majority on the Court, Justice WEAVER, after announcing her intention to resign, suddenly announces her intention to not resign, promising to use her position on this Court to garner legislative support for judicial term limits; (b) after 31 years on the bench, having never uttered a word concerning the disqualification procedures that this Court has followed since 1837, and with the four of us having become the exclusive subject of disqualification motions, overwhelmingly offered by Mr. Fieger, Justice WEAVER has suddenly become a champion of altering
VI. CONCLUSION
Each of us during our judicial service has sought to follow the highest standards of ethics and professionalism. We have sought to give faithful meaning to the law, to decide disputes fairly and impartially, and to approach each case without bias or prejudice. We are each proud of our records on this Court and, as long as we serve, are committed to conferring on every attorney and every litigant—Mr. Fieger not excepted—equal and evenhanded treatment under the law. And that is exactly what we have done in this case. A judge need not admire an individual, or respect his or her actions, in order to be able to accord the individual that which every party before this Court deserves—equal justice under law. We have looked into ourselves, as we must do whenever there is a motion for disqualification, and indeed even sometimes when there is not, and each of us has concluded that he or she is able to accord fair and impartial treatment to Mr. Fieger in this case. We believe that our individual records over the past eight years in addressing cases concerning Mr. Fieger personally, as well as his clients, clearly demonstrate this commitment.
The people of Michigan deserve better than they have gotten from Justice WEAVER today, and so do we, her colleagues.
CORRIGAN, YOUNG, and MARKMAN, JJ., concurred with TAYLOR, C.J.
[f]ew if any members of the Michigan judiciary will be cowed by such outbursts. . . . [O]ur system of justice is not put at risk if these statements are not censored. The public and the profession can express their revulsion at such crudity, while at the same time feeling pride in belonging to a society that allows its expression. If we write rules governing speech to quell such antics, then we will have truly lost our bearings. The judiciary is not so fragile. It is the First Amendment that needs protection. [Grievance Administrator v. Fieger, ADB No. 94-186-GA, opinion issued September 2, 1997 (Fieger II).]
Such protection has been lost today. The majority not only decides a question not before it, but, more troubling, its erroneous conclusions mark a sweeping expansion of the Michigan Rules of Professional Conduct. This expansion precipitates serious constitutional implications and, despite the majority‘s protestations to the contrary, does in fact impermissibly exalt the protection of judges’ feelings over the sanctity of the First Amendment‘s guarantee of freedom of speech. Thus, I respectfully dissent.
I. THE ADB DID NOT DECLARE THE RELEVANT RULES OF PROFESSIONAL CONDUCT UNCONSTITUTIONAL, SO THE ISSUE IS NOT RIPE FOR REVIEW
Although this Court granted leave to consider whether the ADB can declare a rule of professional conduct unconstitutional, that issue is not ripe for review because the ADB did not declare a rule unconstitutional, a majority of the ADB did not opine that it had the authority to do so, and the ADB‘s dismissal of the complaint against respondent was not premised on the purported unconstitutionality of a rule. Thus, the majority errs in addressing this question.
Two members concurred in part and dissented in part. They wrote that the rules did encompass respondent‘s statements, but the First Amendment protected his right to make those statements. The three remaining members dissented, opining that the rules were constitutional and that respondent violated them.
Thus, there is no need to answer the question into which the majority delves because the ADB neither declared the rules unconstitutional nor purported authority to do so. Rather, the ADB‘s lead opinion first held that the rules did not cover respondent‘s comments. Only then did it mention the constitutional aspects of the rules, but instead of declaring the rules unconstitutional, it merely held that because of the constitutional principles of free speech, the rules should be read narrowly. It then concluded that under a narrow reading, respondent‘s comments did not violate the rules. Of course, this view did not garner a majority, and respondent was only vindicated because two of the five remaining board members believed that respondent‘s comments were protected by the First Amendment. But
Nonetheless, because the majority persists in issuing its statement on this matter, it is necessary to illuminate the error in the majority‘s analysis, which analysis asserts that the ADB lacks the authority to render a rule unconstitutional. In carrying out our duty to regulate the legal profession in the state of Michigan, see
Notably,
It is indisputable, as Justice KELLY points out, that this Court is vested with authority to declare enactments unconstitutional. And it appears from the plain language of the court rule that we have delegated this power to the ADB. When we charged the AGC with “discharg[ing our] constitutional responsibility,” we listed no restrictions in this delegation of power. And, importantly, it seems that had we intended to limit the delegation accordingly, we would have explicitly reserved that power unto ourselves when we undertook the task of delegating our constitutional power to another entity, which task was certainly not taken lightly.
Further, it makes little sense to charge the disciplinary board with carrying out this Court‘s duties and requiring it to discipline attorneys, reinstate them, and review final orders of discipline and dismissal in an appellate function without the benefit of deciding constitutional issues raised in that process. We have certainly not restricted trial or appellate courts from declaring enactments unconstitutional, and such rulings are always subject to this Court‘s review, just as are
In carrying out its duties, and to render a just and complete decision, it is only logical that the ADB consider any and all arguments an attorney raises in his or her defense. And constitutional issues will inevitably be raised during the attorney disciplinary process. Petitioner‘s assertion that the board can consider constitutional principles in its decision-making process, but is nonetheless restricted from finding a rule unconstitutional, is an odd one indeed. This would require our adjudicative arm, to which we gave full charge, to consider only half the question. This Court simply did not restrict the ADB in that way.
In any event, as already discussed, the board did not declare any rule unconstitutional. Rather, it merely considered the constitutional issues respondent raised and construed the rules narrowly in light of those principles, an exercise that the Grievance Administrator acknowledges is permitted. As the Sixth Circuit Court of Appeals has observed:
Even if the Board could not declare a Rule of Professional Conduct unconstitutional—a proposition about which we are not convinced—“it would seem an unusual doctrine, and one not supported by the cited case[s], to say that the [Board] could not construe [the Rules of Professional Conduct] in the light of federal constitutional principles.” Ohio Civil Rights Comm‘n v. Dayton Christian Sch., 477 U.S. 619, 629, 106 S. Ct. 2718, 91 L. Ed. 2d 512 (1986). The Board could, short of declaring a Rule unconstitutional, refuse to enforce it or, perhaps, narrowly construe it. [Fieger v. Thomas, 74 F.3d 740, 747 (CA 6, 1996).]
Moreover, for the reasons explained by Justice KELLY, the majority‘s reliance on Wikman v. Novi, 413 Mich. 617; 322 NW2d 103 (1982), Lewis v. Michigan, 464 Mich. 781; 629 NW2d 868 (2001), and
Although, again, the question is not ripe, the majority errs in finding a restriction on the Court‘s power to delegate constitutional power and in holding that the ADB cannot declare a rule of professional conduct unconstitutional. The majority proffers no persuasive authority to justify its holding. Rather, considering that this Court created the ADB, delegated to it the power to carry out our duty of maintaining discipline in the legal profession, and did not otherwise restrict its authority, it should logically follow that the ADB can both consider constitutional questions and declare a rule of professional conduct unconstitutional.
II. RESPONDENT‘S SPEECH DID NOT VIOLATE THE RULES OF PROFESSIONAL CONDUCT UNDER WHICH HE WAS CHARGED
The lead opinion of the ADB correctly concluded that respondent‘s public, out-of-court comments, made after the conclusion of the case about which he spoke, did not violate either
A. RESPONDENT DID NOT VIOLATE MRPC 3.5(c) BECAUSE HIS COMMENTS WERE NOT MADE “TOWARD THE TRIBUNAL”
While respondent does not appear to argue that his comments were particularly dignified or courteous, the crux of this rule is to prevent such comments in or in
In keeping with that theme, the other two subsections of
Importantly, the rules appearing in other chapters of the
Moreover, the comment accompanying this rule sustains the conclusion that the rule is directed only toward conduct that occurs in the tribunal or in the
Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the
Michigan Code of Judicial Conduct , with which an advocate should be familiar. . . .The advocate‘s function is to present evidence and argument so that the cause may be decided according to law. Refraining from undignified or discourteous conduct is a corollary of the advocate‘s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge‘s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
Clearly, this comment envisions conduct in the context of tribunal proceedings. The comment speaks of “improper[ly] influenc[ing a] tribunal,” “present[ing] evidence and argument,” deciding a case, “speak[ing] on behalf of litigants,” “stand[ing] firm against abuse by a judge,” “present[ing] the cause,” “protect[ing] the record for . . . review,” and using patience in place of “belligerence” and “theatrics.” Each of these phrases is clearly connected with tribunal behavior or behavior with respect to an ongoing proceeding (see
As Justice KELLY explains, the revisions to
Of course, it is also important to remark that there has been no warning to the bar that the transformation of
Significantly, this Court has not had occasion to interpret
We agree with the panel that the intent of the rule is to preserve the decorum of the tribunal so that proceedings may be conducted in an orderly fashion. Rude and undignified behavior can detract from the respect an adjudicator must possess in order to effectively manage a courtroom.
The rule is obviously directed at preventing proceedings from devolving into chaos because of lack of respect for the judge. [Fieger II, supra at 31.]
Thus, respondent has already been subject to disciplinary proceedings for speaking out publicly in criticism of the judiciary. Yet he was explicitly absolved of the allegation that public comments about judges violated
Under a scrupulous reading of the rule and the comment, and considering their evolution, there should be no other conclusion but that the rule governs only conduct that occurs in or near the tribunal in the context of litigation. Respondent‘s comments, made during a radio broadcast, were not made in a tribunal,
Justice KELLY also correctly points out the deficiency in the majority‘s assertion that limiting the rule‘s application to tribunal environs would make the rule “superfluous” in light of a trial court‘s contempt powers. See ante at 252;
Moreover,
And I, like Justice KELLY, dispute the majority‘s assertion that construing
Read in its proper context, which the majority‘s conclusory analysis fails to do, it is evident that
B. RESPONDENT DID NOT VIOLATE MRPC 6.5(a) BECAUSE HE DID NOT “TREAT” THE JUDGES WITH DISCOURTESY BY CRITICIZING THEIR DECISION
Respondent correctly contends that his conduct did not violate
A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person‘s race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and nonlawyer assistants to provide such courteous and respectful treatment.
An issue similar to that discussed with respect to
A lawyer is an officer of the court who has sworn to uphold the federal and state constitutions, to proceed only by means that are truthful and honorable, and to avoid offensive personality. It follows that such a professional must treat clients and third persons with courtesy and respect. For many citizens, contact with a lawyer is the first or only contact with the legal system. Respect for law and for legal institutions is diminished whenever a lawyer neglects the obligation to treat persons properly. It is increased when the obligation is met.
A lawyer must pursue a client‘s interests with diligence. This often requires the lawyer to frame questions and statements in bold and direct terms. The obligation to treat persons with courtesy and respect is not inconsistent with the lawyer‘s right, where appropriate, to speak and write bluntly. Obviously, it is not possible to formulate a rule that will clearly divide what is properly challenging from what is impermissibly rude. A lawyer‘s professional judgment must be employed here with care and discretion.
* * * A judge must act “[a]t all times” in a manner that promotes public confidence in the impartiality of the judiciary. Canon 2(B) of the Code of Judicial Conduct . See alsoCanon 5 . By contrast, a lawyer‘s private conduct is largely beyond the scope of these rules. See Rule 8.4. However, a lawyer‘s private conduct should not cast doubt on the lawyer‘s commitment to equal justice under the law. [Emphasis added.]
Again, it is clear from the comment that
Indeed, our disciplinary arm has sharply limited its application of the rule to instances of direct contact and has neither interpreted nor applied the rule in any other manner. Violations of the rule have been found only in instances of, for example, improper sexual conduct, Grievance Administrator v. Neff, ADB No. 95-94-GA, notice of suspension issued April 30, 1996; Grievance Administrator v. Bowman, ADB No. 95-95-GA, notice of reprimand issued January 3, 1996; Grievance Administrator v. Childress, ADB No. 95-146-GA, notice of suspension issued December 6, 1996;
As the lead opinion of the ADB correctly observed:
MRPC 6.5(a) , likeMRPC 3.5(c) , seems clearly to extend to discourtesy toward and disrespect of participants in the legal system when such conduct interferes or has the potential to interfere with the orderly administration of justice. To apply this rule in this case, we would have to hold that “treat” means to make comments about a personoutside their [sic] presence, after the conclusion of the proceedings. This would sweep in any comment critical of a participant‘s role in the justice system even after that role had been concluded. In this country, many trials or other proceedings are subject to discussion and analysis after their conclusion. Nothing in Rule 6.5 suggests that “persons involved in the legal process” may not ever be criticized for their role in that process, not even after the involvement has ceased.
Nor is the majority‘s treatise on our duty to oversee the legal profession and foster rules geared toward maintaining respect for the judiciary persuasive justification for the broad-reaching interpretation it adopts. As the United States Supreme Court has explained:
We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner nor in such way as to impinge on the freedom of political expression or association. A bar composed of lawyers of good character is a worthy objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal. It is also important both to society and the bar itself that lawyers be unintimidated—free to think, speak, and act as members of an Independent Bar. [Konigsberg v. State Bar of California, 353 US 252, 273; 77 S Ct 722; 1 L Ed 2d 810 (1957).]
Further, as we explained in In re Chmura, 461 Mich 517, 540; 608 NW2d 31 (2000), “the state‘s interest in preserving public confidence in the judiciary does not support the sweeping restraints imposed by
Reading the rule in its proper context and affording the term “treat” its common and ordinary meaning, it is again clear that respondent, by his comments, did not “treat” anyone involved in the legal process. Rather, his comments were permitted public criticism of Court of Appeals judges. Just as is the case with
C. RESPONDENT‘S COMMENTS DID NOT PERTAIN TO A PENDING CASE, FURTHER DIMINISHING ANY JUSTIFICATION FOR EXPANDING RULES 3.5(c) AND 6.5(a) BEYOND THEIR INTENDED MEANINGS
The majority observes that restraints on speech can be more encompassing if the speech pertains to an ongoing matter. See ante at 247; Gentile v. State Bar of Nevada, 501 US 1030, 1070; 111 S Ct 2720; 115 L Ed 2d 888 (1991). It concludes that the matter about which respondent spoke (Badalamenti v. William Beaumont Hosp-Troy, 237 Mich App 278; 602 NW2d 854 [1999]) was indeed pending and posits that this justified stricter curtailment of respondent‘s right to speak publicly about it. Notwithstanding that the rules did not apply to respondent because they were not comments “toward” the tribunal and respondent did not “treat” the tribunal discourteously, the majority is quite misguided in concluding that the Badalamenti case was “pending.”
As Justice KELLY observes, legal and lay dictionaries define “pending” in much the same way: “[r]emaining undecided; awaiting decision,” Black‘s Law Dictionary (8th ed), and “awaiting decision or settlement.” Random House Webster‘s College Dictionary (1997). Because of the similarity, it is unnecessary to determine whether the term “pending” has acquired a peculiar meaning in the law. The outcome is identical despite which dictionary is used. A “pending” matter is an undecided matter awaiting decision, which the Badalamenti case clearly was not.
The majority points to several court rules and, because they are inapplicable, engages in an exercise of lexical gymnastics to reach its erroneous conclusion. Specifically, the majority cites
Similarly unhelpful is the majority‘s striving attempt to support its position by citing various other procedural rules, specifically
The majority also “reveals” that respondent ultimately moved for rehearing and for leave to appeal as if this were damning evidence of the pendency of the Badalamenti case. Ante at 249-250 & n 17. It is not. Nothing the majority points to, and nothing uncovered in an exhaustive jurisdictional search, supports the novel notion that speech can be restricted until the time when no further relief from a judgment can ever be sought.
Just as strangely, the majority states that the Badalamenti case was “‘begun, but not yet completed‘” because the Court of Appeals, “by granting a motion for reconsideration or rehearing, could still have affected the substantial rights” of respondent‘s client. Ante at 249. It further opines that the case was still “awaiting rendition of a final judgment” because “Mr. Fieger filed an application for leave to appeal in this Court. . . .” Ante at 250 n 17. This is faulty logic at its core. When respondent made his statements, there was no motion for reconsideration. When respondent made his statements, the case was not “awaiting rendition of a final judgment” because respondent had not, in fact, filed an application for leave to appeal in this Court. It cannot be said any more simply: nothing that had begun lacked completion.
Further, without support, the majority decides that the opposite of “pending” is “final.” Ante at 250 n 17. Proffering a purported antonym, with nothing more, to divine the meaning of a word is certainly a novel approach, but in any event, the attempted correlation does not withstand scrutiny because the court rules on which the majority relies explain when a judgment is “effective” and when the Court of Appeals should return the record to the lower court. The uncomplicated task the majority confounds is deciphering the meaning of the word “pending.” Rather than conduct a simple application of the plain meaning of the word to the facts at hand, the majority circumscribes its assessment of the word “pending” to unrelated court rules, short-shrifting respondent—and any other attorney who wishes to engage his or her right to free speech—and resulting in a contorted analysis.
Further, while
Last, it is paramount to observe that when an enactment threatens to encroach on a person‘s constitutional guarantees, “‘every reasonable construction must be resorted to, in order to save [the enactment] from unconstitutionality.‘” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 US 568, 575; 108 S Ct 1392; 99 L Ed 2d 645 (1988), quoting Hooper v. California, 155 US 648, 657; 15 S Ct 207; 39 L Ed 297 (1895). Interpreting the word “pending” in a way that restricts respondent‘s
Were the meaning of “pending” given proper import here, rather than being contorted or ignored, it would be plain that a matter that has been decided by the Court of Appeals is no longer “pending.” As such, the majority‘s analysis is incomplete and, ultimately, incorrect. Given the proper construction, which includes accounting for the constitutional implications, it is evident that the Badalamenti case was not “pending” when respondent spoke publicly about it. Thus, the majority not only unjustifiably expands the meaning of the otherwise plain language of the rules at issue, it also compounds its error by misusing our authority to limit speech that pertains to a pending case because the case was not, in fact, pending.
“There is no question that speech critical of the exercise of the State‘s power lies at the very center of the
To provide the needed jurisprudential background the majority omits, political speech protection encompasses not only statements about current electoral candidates, but extends to all “expression of editorial opinion on matters of public importance. . . .” FCC v. League of Women Voters of California, 468 US 364, 375; 104 S Ct 3106; 82 L Ed 2d 278 (1984). “Whatever differ-
“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 US 64, 74-75; 85 S Ct 209; 13 L Ed 2d 125 (1964). Thus, the United States Supreme Court has “repeatedly explained [that] communication of this kind is entitled to the most exacting degree of
The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one‘s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect. [Id. at 270-271.]
Consider also the following:
erer v Office of Disciplinary Counsel of the Ohio Supreme Court, 471 U.S. 626, 647-648; 105 S. Ct. 2265; 85 L. Ed. 2d 652 (1985).]More fundamentally, although the State undoubtedly has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State‘s desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their
First Amendment rights. Even if that were the case, we are unpersuaded that undignified behavior would tend to recur so often as to warrant a prophylactic rule. [Zaud-
Rather, restrictions on public comment in this context have normally been validated only when the voicing of opinion threatens to wreak serious prejudice on the orderly administration of justice. See Bridges, supra at 271. And even then the right to speak is closely guarded. The case must be pending, and comment about it cannot be suppressed unless the “substantive evil of unfair administration of justice” is a “likely consequence” or punished unless “the degree of likelihood was sufficient to justify summary punishment.” Id. (emphasis added). And again, once an interest is validated, a substantive evil is identified, and the substantive evil is found to be a likely consequence,
[t]he Government may serve this legitimate interest, but to withstand constitutional scrutiny, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms.” It is not enough to show that the Government‘s ends are compelling; the means must be carefully tailored to achieve those ends.” [Sable Communications, supra at 126 (citations omitted).]
Significantly, the majority omits any meaningful discussion regarding whether the rules it interprets to encompass respondent‘s conduct were narrowly tailored, stating in conclusory fashion only that the rules are narrowly drawn. See ante at 261.
Critically, again, the determination whether a case is pending cannot be conducted without affording serious weight to the constitutional principles involved. In this sense, a rule restricting speech that is questionable in the constitutional respects of vagueness or overbreadth can be interpreted in such a manner that it upholds the
In addition to what has already been stated in part II(C) of this opinion, in determining whether a case is pending in light of the constitutional right to speak freely, it is informative to examine Justice Frankfurter‘s words written in dissent to the majority‘s finding that the speech in Bridges, which occurred between trial and sentencing, did not prejudice the administration of justice. While the majority did not conclude that the case was not pending, but, rather, that the speech did not pose a threat serious enough to the administration of justice to be punishable, Justice Frankfurter believed that the majority did not give proper accord to the status of the case, which, by any estimation, had not concluded. In his vigorous dissent, Justice Frankfurter distinguished cases that are no longer awaiting decision from those in which a decision has not yet been rendered:
The question concerning the narrow power we recognize always is--was there a real and substantial threat to the impartial decision by a court of a case actively pending before it? The threat must be close and direct; it must be directed towards a particular litigation. The litigation must be immediately pending. When a case is pending is not a technical, lawyer‘s problem, but is to be determined by the
substantial realities of the specific situation.8 Danger of unbridled exercise of judicial power because of immunity from speech which is coercing is a figment of groundless fears. In addition to the internal censor of conscience, professional standards, the judgment of fellow judges and the bar, the popular judgment exercised in elections, the power of appellate courts, including this Court, there is the corrective power of the press and of public comment free to assert itself fully immediately upon completion of judicial conduct. Because courts, like other agencies, may at times exercise power arbitrarily and have done so, resort to this Court is open to determine whether, under the guise of protecting impartiality in specific litigation, encroachments have been made upon the liberties of speech and press.
[Bridges, supra at 303-304 (Frankfurter, J., dissenting) (emphasis added).]11
As is clear from these statements, there is much more to consider than a court rule governing when a Court of
Applying these precepts, as the majority fails to do, the Kansas Supreme Court determined that an attorney‘s comments to a reporter, made in the afternoon on November 7, 1970, and printed on November 8, 1970, about a decision issued on November 7, 1970, were not made about a pending case. Kansas v. Nelson, 210 Kan. 637; 504 P.2d 211 (1972). The court reasoned: “Since our decision on November 7, 1970, terminated the case referred to by respondent in his interview, we do not believe a violation of DR 1-102(A)(5)12 is clearly shown. . . . Since the case was terminated, respondent‘s statements can not serve as harassment or intimidation for the purpose of influencing a decision in the case involved.” Id. at 641 (citation omitted). Presumably, the Nelson respondent could have still moved for reconsideration. But the court did not fixate on the procedural technicalities; rather, it considered the real-world purpose of the rules proscribing speech and whether the speech, in that context, would have the potential to influence a pending case.
When the realistic, rather than abstract, concerns are heeded, as they must be in a constitutional analysis, it is acutely clear that the case about which respondent spoke was not pending. A verdict had been rendered,
Forbidden comment is generally such as may throw psychological weight into the scales which the judge is immediately balancing. Where the scales have already come to rest, the criticism is of that which the judge has seen fit to place on them to cause such balance, and hence has no effect upon the weighing of the elements of justice involved. [In re Bozorth, 38 N.J. Super. 184, 191; 118 A.2d 430 (1955).]
The red herring the majority inserts into this case is that respondent was still entitled to move for reconsideration and to petition this Court for leave to appeal. As discussed in part II(C) of this opinion, respondent had not so moved, so there was nothing at all left to be decided. It is of no consequence that respondent later invoked his client‘s right to petition for further review. Respondent was entitled at the time he spoke to speak freely about the Badalamenti case. Not only was there no “serious substantive evil” at play, there simply was no risk at all of prejudicing the administration of justice. The scales of justice had come to rest. The majority‘s failure to address whether the case was truly pending in light of the “substantial realities” of this specific situation is a disservice to members of the bar and, critically, takes an enormous bite out of the
Not only does the public‘s right to be informed of the workings of the judiciary transcend the judiciary‘s right to shield itself from even the basest of criticisms, but the judiciary, upon which is conferred unique powers, significant influence, and considerable insulation, must
There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt. [Bridges, supra at 289 (Frankfurter, J., dissenting).]
Further, it is paramount to stress, when assessing the danger of prejudicing justice by speaking about pending matters, that “neither ‘inherent tendency’ nor ‘reasonable tendency’ [to prejudice the administration of justice] is enough to justify a restriction of free expression.” Id. at 273 (majority opinion). Nor is it enough to merely assert a substantial likelihood of causing material prejudice; rather, the disciplinary board or reviewing court must put forth credible evidence of such a threat. See Gentile, supra at 1038. In Bridges, the petitioners were accused of threatening the orderly administration of justice by publishing comments before an upcoming sentencing that criticized the possible outcome of probation. See Bridges, supra at 272 n 17, 274 n 19. The strongly worded editorials were replete with frightening descriptions of the defendants that seemed to be designed to instill fear in the public and intimidate the sentencing judge into imprisoning the defendants. Id. In deciding that the comments merited
It is no small irony that the same could be said about this respondent and his comments. Respondent is no stranger to the disciplinary system, although not once have his comments been found punishable until today, and respondent is likely quite accustomed to accusations that he attempts to unfairly influence trial proceedings by his disposition as an advocate. See, e.g., Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 777-778; 685 N.W.2d 391 (2004). Indeed, respondent has many times been the target of criticism by members of this very majority. See id.; see also Justice WEAVER‘S dissent in this case. To now opine that respondent‘s unsurprising response to losing a jury verdict on appeal was prejudicial to the administration of justice fails to account for both his well-known “long-continued militancy” in the field of litigation for injured plaintiffs and the “firmness, wisdom, or honor” of the judges about whom he speaks. Bridges, supra at 273.13
With the majority‘s attempt to maintain that the Badalamenti case was pending discredited, and any
Several aspects of the majority‘s characterization of the interest at issue must be noted. For instance, in one portion of its opinion, the majority states that we have an interest in a system “in which the public is not misled by name-calling and vulgarities from lawyers who are held to have special knowledge of the courts. . . .” Ante at 242. I find this statement to be presumptuous and insulting to the intellect of our citizenry. The majority must believe that our citizens, unable to think for themselves and unable to engage in critical thinking when faced with divergent viewpoints, need the state to protect them from what the majority pеrceives may mislead them.14 The majority thus makes a frightening judgment that speech itself is inherently
The majority also presumes that a process in which it is assured that judges can “mete out evenhanded decisions” without being “undermined by the fear of vulgar characterizations of their actions” is a desirable goal that overrides
Even the
Although the majority purports to recognize that “lawyers have an unquestioned right to criticize the acts of courts and judges,” and that “there is no prohibition on a lawyer engaging in such criticism even during the pendency of a case,” it nonetheless asserts that there exist “limitations . . . on the form and manner of such criticism. . . .” Ante at 263. A systematic review of the majority‘s sources dismantles its broad claim and reveals its holding for what it truly is: an attorney cannot use choice language to criticize a judge, ever.
Of particular note are the majority‘s citations for this proposition. In misleading fashion, the majority states the following:
In discussing the scope of this obligation in the 19th century, the United States Supreme Court stated that attorneys are under an implied “obligation . . . to maintain at all times the respect due to courts of justice and judicial officers. This obligation . . . includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their judicial acts.” [Ante at 244, quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 355; 20 L. Ed. 646 (1872).]
Even a cursory reading of Bradley reveals three important facts. First, the attorney in Bradley criticized the judge in the courtroom in the context of litigation. Second, the entire Bradley opinion was devoted to
Tellingly, the proposition the majority extracts from Bradley has never been tested in the constitutional framework of an ethical rule that purports to prohibit rude speech that lacks a defamatory component made about judges after a case has concluded. To rely on such a statement for the sweepingly broad proposition that attorneys cannot utter rude remarks in that situation is misleading at best.
Of similar precariousness is the majority‘s citation of In re Mains, 121 Mich. 603; 80 N.W. 714 (1899). Although the majority again attempts to fashion a broad rule by isolating a comment, a quick glance at Mains exposes the majority‘s loose methodology. The majority cites Mains for the proposition that “an attorney has no right to so conduct himself or herself as to dishonor his or her profession or to bring the courts of this state into disrepute.” Ante at 262 n 31. This Court in Mains considered an attorney‘s accusations, made in letters to a judge, that the judge was engaging in corruption and conspiracy. Thus, this Court did not test the statement cited by the majority in the context of out-of-court, nondefamatory criticisms of the judiciary outside the context of pending litigation.
The same is true for the majority‘s citation of In re Thatcher, 80 Ohio St. 492, 669; 89 N.E. 39 (1909). That opinion was written before the state‘s rules of professional conduct had been established, see In re Harper, 77 Ohio St. 3d 211, 225; 673 N.E.2d 1253 (1996), and, thus, is an insufficient test of whether the broad concept that an attorney should be respectful of the judiciary can be codified as a speech restriction and survive
The majority repeats its error in citing Attorney General v. Nelson, 263 Mich. 686, 701; 249 N.W. 439 (1933). See ante at 263. The majority again attempts to draw unbelievably broad concepts from a vastly distinguishable situation. In Nelson, it took this Court 12 pages to catalog the conduct at issue, which consisted of, to be brief, an attorney making accusations in pleadings, petitions, and circulated letters that a judge and other attorneys were extensively abusing the legal process. So again, when this Court stated that an attorney “should be at all times imbued with the respect which he owes to the court before whom he is practicing,” Nelson, supra at 701, we in no way issued a blanket statement from which a rule that an attorney must not ever speak rudely of a judge can be derived.
In the same searching method, the majority cites Cantwell v. Connecticut, 310 U.S. 296; 60 S. Ct. 900; 84 L. Ed. 1213 (1940), in claiming that respondent‘s comments, because of their graphic content, were not political speech because ” ‘[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution. . . .’ ” Ante at 256-257, quoting Cantwell, supra at 309-310. The reader should first be informed that Cantwell was not a case involving political speech. Rather, the Cantwell plaintiffs were engaged in reli-
Cantwell‘s conduct, in the view of the court below, considered apart from the effect of his communication upon his hearers, did not amount to a breach of the peace. One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument. [Id. at 309-310.]
Likewise useless is the majority‘s reliance on Chaplinsky v. New Hampshire, 315 U.S. 568; 62 S. Ct. 766; 86 L. Ed. 1031 (1942). Chaplinsky also involved the dissemination of religious ideas that offended the listeners. Further, Chaplinsky concerned itself with “fighting words” and held that the statute at issue was sufficiently narrowly tailored so as to prevent only “specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.” Id. at 573.
One can only surmise that it must be this clear misunderstanding of Cantwell and Chaplinsky that prompts the majority to make the following conclusion: “There is no reasonable construction of Mr. Fieger‘s remarks that could lead to the conclusion that these
Notwithstanding the majority‘s failure to connect the rules at issue with respondent‘s conduct and its inability to base in any law a blanket curtailment on offensively worded criticism, the majority astoundingly opines that a conception of the
For the reasons I have stated, I strongly disagree with the majority‘s erroneous conclusion that respondent‘s conduct is punishable for any of the reasons the majority asserts. Because, although the majority be-
These ideas are far from novel, and a broad survey of this nation‘s jurisprudence confirms that attorneys can publicly criticize the judiciary and cannot be punished for such speech, no matter how crass, when the criticisms do not affect the decorum of the tribunal or substantially prejudice the administration of justice.
The same can be said now as was said in Westfall, in which the dissent challenged the majority‘s overly broad holding: “Make no mistake about it. The principal opinion chills lawyers’ speech about judicial decisions. . . . This language portends further disciplinary proceedings against lawyers . . . who express themselves too freely. Many will conclude that it is wise to keep quiet.” Westfall, supra at 849 (Blackmar, C.J., dissenting.)
IV. CONCLUSION
It is ridiculous to conclude, as does the majority, that respondent‘s speech fell within the narrow bounds of the rules of professional conduct with which he was accused of violating. The majority‘s holding is reached only by distorting the language of the rules and ignor-
WEAVER, J., concurred with CAVANAGH, J.
WEAVER, J. (dissenting). I dissent from the majority‘s decision to remand this case for the imposition of the agreed-to professional discipline, a reprimand of Mr. Fieger, and join Justice CAVANAGH‘s opinion on the substantive issues in this case.
I write separately to dissent from the participation of Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN in this case.
Statements made during their respective judicial campaigns displaying bias and prejudice against Mr. Fieger require Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN to recuse themselves from this case in which Mr. Fieger is himself a party.1 Further, Chief Justice TAYLOR and Justices CORRIGAN and MARKMAN have become so “enmeshed” in matters involving Mr. Fieger as to make it inappropriate for
In their joint opinion, Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN mischaracterize my dissent and motives. Further, their criticisms and personal attacks in the joint opinion of the majority justices are misleading, inaccurate, irrational, and irrelevant to the issues in this case.3 The majority appears to be attacking the messenger rather than addressing the genuine issue of due process created by the displays of bias and prejudice in this case.4
One of the fundamental rights of a litigant under our judicial system is that he shall be entitled to a hearing before a court to which no taint of prejudice is attached. This is so firmly established as to regularly constituted courts as to need no comment.5
Further, an unbiased judge is essential to the due process guarantees of the
Disqualification for personal bias against a party may be required in order to protect the party‘s due process rights. When a judicial candidate has made a campaign statement displaying extreme animosity toward a spe-
cific individual, once on the bench, the judge should be disqualified from hearing cases in which that individual is a party. If a judge has become so embroiled in conflicts with a defendant as to demonstrate hostility toward the defendant, the judge must be disqualified.
A
Here, the statements about Mr. Fieger made during their respective judicial campaigns require Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN to recuse themselves from this case in which Mr. Fieger is a party. “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.”8 A judge who has bias against one of the parties appearing before him could be tempted “not to hold the balance nice, clear and true.”9 To avoid this possibility, due process requires that a judge who has made campaign statements demonstrating extreme antagonism toward an individual recuse himself or herself from a case in which that individual is a party. Friedland, Disqualification or suppression: Due process and the response to judicial campaign speech, 104 Colum L R 563 (2004).
Numerous cases of the United States Supreme Court hold that due process requires a lack of bias for or against a party.10 Republican Party of Minnesota v White suggests that if campaign statements display a bias for
In Republican Party of Minnesota v White, the Court stated that it is speech for or against parties that raises problems of impartiality or the appearance of impartiality:
We think it plain that the announce clause [restricting judicial campaign speech] is not narrowly tailored to serve impartiality (or the appearance of impartiality) in this sense. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues.14
In so holding, the Court recognized that speech for or against particular parties in a case does implicate impartiality or the appearance of impartiality.
The Florida Supreme Court held that a judge who uttered campaign statements directed at a particular
The Florida Supreme Court held that these campaign statements disqualified the judge from subsequently presiding over a trial of Philip La Russa for violating lottery laws. The Court stated:
Fear that [La Russa] will not have a fair trial may in some cases be a mental attitude but if the conduct of the judge has been such as to create it, the law requires that he recuse himself. It may ultimately be as devoid of reality as the cenotaph is the remains of the hero it commemorates but if conclusively shown that the seed of fear was planted and the facts related give a reasonable man ground for belief that the judge is prejudiced, that is sufficient. It is contrary to all human experience to contend that a judge under the circumstances stated may single out one charged or that may be charged with crime and talk to the public about sending him to Raiford (State penitentiary) and then contend that the one singled out when hailed before the judge for trial had no ground for belief that the latter was prejudiced.17
Similarly, the campaign statements made by Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and
For example, on February 20, 2006, while this case was pending before this Court, the Committee to Re-elect Justice Maura Corrigan sent out a fund-raising letter from former Governor John Engler stating that “[w]e cannot lower our guard should the Fiegers of the trial bar raise and spend large amounts of money in hopes of altering the election by an 11th hour sneak attack.” Former Governor John Engler may make any statements about Mr. Fieger with impunity, as long as he does not violate libel or slander laws. But Justice CORRIGAN cannot do so without potentially disqualifying herself from sitting in a case in which Mr. Fieger is a party. Justice CORRIGAN adopted former Governor Engler‘s statement as her own when she had her campaign committee pay for and send out the former governor‘s letter.18 Justice CORRIGAN‘s adoption of this statement identifying Mr. Fieger as a possible threat to Justice CORRIGAN‘s reelection campaign as her own displays a bias against Mr. Fieger.
This display of bias is of special concern because this case, in which Mr. Fieger is a party, was pending at the time the letter was sent. On May 27, 2005, this Court granted leave to appeal in this case; on February 14, 2006, oral argument in this case was scheduled; on February 20, 2006, Justice CORRIGAN‘s campaign issued the fund-raising letter; and 16 days later, on March 8,
Regarding Chief Justice TAYLOR, it was reported that, during his 2000 campaign, he made statements at a fund-raiser about the cases that Mr. Fieger had pending in the appellate courts: “Geoffrey Fieger apparently has $90 million of lawsuit awards pending in the state Court of Appeals.”19 The majority‘s joint opinion asserts that “it shows no ‘bias or prejudice’ to identify the number of cases Mr. Fieger had on appeal....” Ante at 272. But then-Justice TAYLOR was not identifying the number of cases that Mr. Fieger had on appeal; he was emphasizing the amount of money that was at stake—$90 million—and implying that the awards would be overturned if then-Justice TAYLOR were retained in office.
Justice YOUNG, in a speech at the Republican Party state convention in August 26, 2000, said that “Geoffrey Fieger, and his trial lawyer cohorts hate this court. There‘s honor in that.”20
Yet another display of bias occurred in a campaign ad paid for by “Robert Young for Justice,” “Stephen Markman for Justice,” and “Clifford Taylor for Justice.” The campaign ad included the following language:
By displaying bias and prejudice against an individual, attorney Geoffrey Fieger, during their judicial campaigns, Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN have disqualified themselves from hearing this case in which Mr. Fieger is a party.
B
In addition, Chief Justice TAYLOR and Justices CORRIGAN and MARKMAN have become so “enmeshed” in matters involving Mr. Fieger as to make it inappropriate for them to sit in a case in which Mr. Fieger is a party. See Johnson v Mississippi.22
In Johnson, Robert Johnson, a civil rights worker who was at the time a defendant in a criminal proceeding, allegedly disobeyed a trial judge‘s instructions directing him where to walk in the courtroom. The trial judge had Johnson removed from the courtroom and instituted contempt proceedings against Johnson two years later. In the meantime, Johnson and others had
immediately prior to the adjudication of contempt [the trial judge] was a defendant in one of [Johnson‘s] civil rights suits and a losing party at that. From that it is plain that he was so enmeshed in matters involving [Johnson] as to make it most appropriate for another judge to sit. Trial before “an unbiased judge” is essential to due process.26
Mr. Fieger has criticized Chief Justice TAYLOR‘s and Justice CORRIGAN‘s prior actions as Court of Appeals judges, and both justices have been involved in prior grievance actions relating to Mr. Fieger‘s criticism of their actions. Therefore, both Chief Justice TAYLOR and Justice CORRIGAN are “so enmeshed” in matters involving Mr. Fieger that due process requires that they not participate in cases in which Mr. Fieger is a party.
In 1994, complaining about two then-recent Court of Appeals cases, Mr. Fieger publicly insulted Chief Justice
Cliff Taylor and [Court of Appeals Judge E. Thomas] Fitzgerald, you know, I don‘t think they ever practiced law, I really don‘t. I think they got a law degree and said it will be easy to get a—they get paid $120,000 a year, you know, and people vote on them, you know, when they come up for election and the only reason they keep getting elected [is] because they‘re the only elected officials in the state who get to have an incumbent designation, so when you go into the voting booth and it says “Cliff Taylor“, it doesn‘t say failed Republican nominee for Attorney General who never had a job in his life, whose wife is Governor Engler‘s lawyer, who got appointed when he lost, it says “Cliff Taylor incumbent judge of the Court of Appeals,” and they vote for him even though they don‘t know him. The guy could be Adolf Hitler and it says “incumbent judge” and he gets elected.
Mr. Fieger said more about Chief Justice (then-Court of Appeals Judge) TAYLOR:
[T]his guy has a political agenda.... I knew in advance what he was going to do.... We know his wife is Governor Engler‘s Chief Counsel. We know his wife advises him on the law. We know—we knew—what he was going to do in advance, and guess whаt, he went right ahead and did it. Now you can know somebody‘s political agenda affects their judicial thinking so much that you can predict in advance exactly what he‘s going to do[,]... his political agenda translating into his judicial decisions.
Although the Grievance Administrator charged Mr. Fieger with professional misconduct, on the basis of this statement and others, Mr. Fieger was never disciplined for these public slurs on then-Judge TAYLOR.27
That Justice CORRIGAN is too enmeshed in matters involving Mr. Fieger is revealed by the fact that on March 25, 1996, then-Judge CORRIGAN filed a request for an investigation of Mr. Fieger with the Attorney Grievance Administrator. This request for investigation was filed by then-Judge CORRIGAN in response to statements alleging a conspiracy between her and the Oakland County Prosecutor‘s office to improperly influence the outcome of Jack Kevorkian‘s criminal trial. That request for investigation was dismissed by the Attorney Grievance Commission in 2002.28 This case involves the identical issue (criticism of an elected judge by Mr. Fieger) as the 1996 situation in which then-Judge CORRIGAN was both the judge being criticized and the complainant requesting an investigation.
These events support the conclusion that Chief Justice TAYLOR and Justice CORRIGAN have become so “enmeshed” in matters involving Mr. Fieger‘s comments towards judges, the subject of this case before us, as to make it inappropriate and a violation of due process for them to sit in this case in which Mr. Fieger is a party.
Justice MARKMAN has also been so enmeshed in matters involving Mr. Fieger as to make it inappropriate for him to sit in a case in which Mr. Fieger is a party. In Johnson, immediately before the adjudication of a contempt charge, the trial judge was a defendant in one of plaintiff Johnson‘s civil rights suits. Here, Justice
While Justice MARKMAN did not instigate that suit, he did file the motion seeking Rule 11 sanctions, using as background the fact that Mr. Fieger had previously filed numerous “frivolous” motions against him. Given that fact, Justice MARKMAN has become so “enmeshed” in controversial affairs with Mr. Fieger that due process requires that he not participate in this case, in which Mr. Fieger is a party.
C
Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN may argue that they have no actual bias or prejudice against Mr. Fieger. But regardless of what their innermost feelings may be, their displays of bias and animosity toward Mr. Fieger, as demonstrated by the aforementioned examples, require them to recuse themselves. Actions speak louder than words, and a judge may be the last person to perceive actual bias against the party accusing the judge of bias. As the United States Supreme Court said in In re Murchison:30
This Court has previously recognized that “there may be situations in which the appearance of impropriety on the part of a judge or decisionmaker is so strong as to rise to the level of a due process violation.”31 This is such a case.
Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN have recently attempted to rewrite how the rules of conduct that govern judges, including the justices of this Court, are applied by questioning and rejecting the application of the appearance of impropriety standard in Canon 2 of the Code of Judicial Conduct.32 The joint opinion of the majority justices relies on a statement by Chief Justice TAYLOR and Justice MARKMAN in Adair for the proposition that
if a judge does that which the law and the standards of conduct permit, such action cannot ordinarily serve as the
The justices of the majority miss the point. The question is not whether their actions were legal. The question is whether those actions display extreme antagonism toward and bias against a party in a case, or demonstrate that judges have become so “enmeshed” in matters involving a person as to make it a violation of due process for them to sit in a case in which that person is a party. Disqualification may be required for actions that are within the law when those legal actions violate a party‘s rights to due process under the Fifth and the Fourteenth Amendment.
D
The broader issue concerning disqualification of justices has repeatedly presented itself in cases before this Court for more than three years. Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN inaccurately suggest in their joint opinion that my concern over this Court‘s disqualification practices began “only after Mr. Fieger ceased targeting her with these motions.”33 This speculation is untrue.
During this Court‘s deliberations in In re JK, 468 Mich 202; 661 NW2d 216 (2003), a case involving termination of parental rights, my participation in the case became an issue and led me to research the procedures governing the participation and disqualification of justices.34 Since that time, I have repeatedly
In September 2003, I denied Mr. Fieger‘s motion for my recusal in Gilbert v DaimlerChrysler Corp.35 In requesting my recusal from that appeal, Mr. Fieger asserted only that the Michigan Chamber of Commerce, who had filed a brief as amicus curiae in Gilbert, had contributed to my campaign for reelection to the Michigan Supreme Court and had aired advertisements advocating my reelection. I included in the order denying the motion a detailed statement explaining my reasons for denying the motion.
I noted in my statement in Gilbert that my reelection campaign records showed that it had received a $200 contribution from Mr. Fieger.36 This was a clerical error. Records from the Secretary of State show that Mr. Fieger contributed $400 to my reelection campaign committee. To the best of my knowledge, this is the only “support” that Mr. Fieger gave my campaign committee in the 2002 election, despite the concurring statement‘s insinuations to the contrary, ante at 267.37
Plaintiff‘s motion for recusal is based on the same grounds alleged in the April 16, 2003 motion filed in Gilbert v DaimlerChrysler, Docket No. 122457 to recuse the same justices. But plaintiff recognizes that the allegations pertaining to the Michigan Chamber of Commerce participating as amicus curiae in Gilbert v DaimlerChrysler do not apply in this case.
The joint opinion‘s suggestion, ante at 280 n 6, that I merely issued a conclusory statement denying the recusal motion in Graves is both inaccurate and misleading. Since I responded to these two motions for my recusal with detailed statements explaining my decisions not to recuse myself from these cases, Mr. Fieger has not moved for my recusal in any subsequent cases.
Currently, justices of the Michigan Supreme Court sometimes follow unwritten traditions when deciding a motion for disqualification. At other times, justices follow portions of the current court rule on disqualification,
This helter-skelter approach of following “unwritten traditions” that are secret from the public is wrong. There should be clear, fair, orderly, and public procedures concerning the participation or disqualification of justices.
CONCLUSION
Had any one of the four justices in the majority—Chief Justice TAYLOR or Justice CORRIGAN, Justice YOUNG, or Justice MARKMAN—recused himself or herself from participating in the case, the Attorney Discipline Board‘s decision to dismiss the charges against Mr. Fieger would have been affirmed by equal division.
But at other times, these four justices have not followed the provisions of
I declined to participate in the various motions requesting the disqualification of Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN when Mr. Fieger appeared as an attorney representing a party. In doing so, I stated that those motions and cases should not be decided until the Court published for public comment and public hearings and adopted clear, fair, orderly, and public procedures concerning the participation or disqualification of justices.42 But now that this case is being decided, and Mr. Fieger is a party, rather than an attorney representing a party, I can no longer withhold my opinion that Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN should not be participating in the decision of this case.
KELLY, J. (dissenting). We granted leave to appeal in this case to determine (1) whether the Attorney Discipline Board (ADB) can answer constitutional questions,
I agree with the majority of the ADB that the ADB has the authority to decide constitutional questions because, inherently, this Court has delegated that authority to it. I would hold, also, that respondent did not violate
THE ADB CAN DECIDE CONSTITUTIONAL QUESTIONS
The issues presented in this case are questions of law involving attorney discipline, which we review de novo. Grievance Administrator v Lopatin, 462 Mich 235, 247; 612 NW2d 120 (2000). Our responsibility to regulate and discipline members of the State Bar of Michigan is found in our state constitution at
The majority holds that the ADB cannot answer constitutional questions because of its mere quasi-judicial status. It bases that decision on Wikman v Novi,5 Lewis v Michigan,6 and
protection provisions.7 Article 3, § 2 of the state constitution is the Separation of Powers Clause.8
Lewis had nothing to do with the delegation of authority to decide constitutional questions. Wikman discussed the authority of the Legislature to delegate to one of its agencies the power to determine a constitutional question. It inferred that the Legislature cannot make this delegation because the authority to answer a constitutional question resides in the judicial branch.
By contrast, this case involves the power of the Supreme Court to delegate authority to opine on a constitutional question to one of its own agencies. It does not follow that, because a legislatively created quasi-judicial agency may not decide a constitutional question, a quasi-judicial agency of the Supreme Court cannot do so. Rather, the opposite result should obtain. If this Court makes a broad delegation of authority to its own quasi-judicial agency and does not expressly exempt from it the determination of constitutional questions, the agency has that power.
There being no restriction on the Court‘s power to delegate constitutional power and none on the ADB‘s delegated authority, I would hold that the ADB may answer constitutional questions involving attorney discipline.
RESPONDENT DID NOT VIOLATE MRPC 3.5(c)
A. PENDING CASES
In order to determine whether respondent violated
The word “pending” is not defined by the Michigan Court Rules. Therefore, it is appropriate to consult other sources to verify the word‘s ordinary meaning.
The majority also uses a legal dictionary. Applying it to several court rules, the majority concludes that the Court of Appeals opinion was still pending because it was not effective at the time respondent made his comments. The majority states that
When respondent made his statements, there were no issues unresolved or motions left to be decided. Although the opinion was not yet final, it had been released and nothing remained to be done by the Court of Appeals; nothing was “pending.” The majority‘s analysis does not apply the common meaning of “pending.” Instead, it creates a world where cases theoretically can be pending for an indeterminate length of time.9
In light of the above, I am not persuaded by the majority‘s analysis. Rather, I find that the underlying case was not “pending” at the time respondent made his comments.
B. IN-COURT STATEMENTS
The advocate‘s function is to present evidence and argument so that the cause may be decided according to law. Refraining from undignified or discourteous conduct is a corollary of the advocate‘s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge,
but should avoid reciprocation; the judge‘s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
When subsection c is read in the context of the entire rule and the comment, its intent becomes apparent. It is aimed at prohibiting conduct that is directed “toward the tribunal” only during oral argument or trial. Everything in the comment refers to activity that transpires in a courtroom. The comment is quiet about an attorney‘s conduct anywhere else or after a proceeding is no longer pending.
When interpreting
As ADB members Theodore J. St. Antoine, William P. Hampton, and George H. Lennon noted in their opinion in this case:
In terms of the structure of Rule 3.5 versus the comparable Code provision, we note that the former Code‘s DR 7-106 dealt entirely with “Trial Conduct,” and subparagraph (C) contained seven prohibitions applicable when a lawyer was “appearing in his professional capacity before a tribunal.” Michigan and Model Rules 3.5 involve not only rules regarding conduct during a proceeding, but also rules
which had previously been located elsewhere in the Code, such as prohibitions against influencing judges and other officials. Thus, the introductory paragraph of Rule 3.5 reflects a different, broader, scope than that of the comparable Code provision. That is, instead of saying (as the Code did), “In appearing in his professional capacity before a tribunal, a lawyer shall not . . . ,” MRPC 3.5 says simply, “A lawyer shall not . . . .” The ABA focused Model Rule 3.5(c) on conduct related to pending proceedings by prohibiting “conduct intended to disrupt a tribunal.” Michigan‘s Rule, as we have mentioned, is different. Although Michigan largely adopted the ABA Model Rules, the text of MRPC 3.5(c) was modified so that it proscribes ”undignified or discourteous conduct toward the tribunal.” [Emphasis in original.]
As these members of the ADB properly explained,
Respondent made the statements on a radio program. He did not make them in a court of law. I would limit
I am unpersuaded by the majority‘s conclusion that limiting the rule‘s application to a courtroom would make it superfluous in light of the contempt powers of courts.
I also disagree with the majority that a construction of
I would read
RESPONDENT DID NOT VIOLATE MRPC 6.5(a)
A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person‘s race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and nonlawyer assistants to provide such courteous and respectful treatment.
Respondent argues that
A lawyer is an officer of the court who has sworn to uphold the federal and state constitutions, to proceed only by means that are truthful and honorable, and to avoid offensive personality. It follows that such a professional must treat clients and third persons with courtesy and respect. For many citizens, contact with a lawyer is the first or only contact with the legal system. Respect for law and for legal institutions is diminished whenever a lawyer neglects the obligation to treat persons properly. It is increased when the obligation is met.
A lawyer must pursue a client‘s interests with diligence. This often requires the lawyer to frame questions and statements in bold and direct terms. The obligation to treat persons with courtesy and respect is not inconsistent with the lawyer‘s right, where appropriate, to speak and write bluntly. Obviously, it is not possible to formulate a rule that will clearly divide what is properly challenging from what is impermissibly rude. A lawyer‘s professional judgment must be employed here with care and discretion.
When read in conjunction with the comments, the rule reveals an underlying intent that lawyers display civility towards parties, witnesses, and third parties involved in the legal process. Because the rule focuses on the legal process, its application should be to pending litigation or other pending “legal matters.” To read it otherwise would be to extend its application beyond any identifiable time limit. An attorney could be subject to sanctions under the rule years after a legal matter was no longer pending. I agree with the reasoning of ADB members St. Antoine, Hampton, and Lennon that “[n]othing in Rule 6.5 suggests that ‘persons involved in the legal process’ may not ever be criticized for their role in that process, not even after the involvement has ceased.”
As explained above, respondent‘s comments were not made while the case was pending. The Court of Appeals had decided the matter, and no postjudgment motions
MRPC 3.5(c) AND 6.5(a) ARE UNCONSTITUTIONAL
Respondent argues that, if his words did violate
A. VAGUENESS
Due process requires that an enactment be held void for vagueness if it is worded so that someone of ordinary intelligence cannot readily identify what does and does not violate the law. United Food & Commercial Workers Union, Lоcal 1099 v Southwest Ohio Regional Transit Auth, 163 F3d 341, 358-359 (CA 6, 1998); Grayned v City of Rockford, 408 US 104, 108; 92 S Ct 2294; 33 L Ed 2d 222 (1972). Vague laws not only trap innocent persons, they “impermissibly delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” United Food, supra at 359, quoting Grayned, supra at 108-109. The United States Supreme Court has determined that
[i]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague
laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. [Grayned, supra at 108.]
Moreover, the absence of clear standards invites abuse by enabling an official to use impermissible facts to administer the policy. United Food, supra at 359. The danger of “abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum‘s use.” Southeastern Promotions, Ltd v Conrad, 420 US 546, 553; 95 S Ct 1239; 43 L Ed 2d 448 (1975). The vagueness doctrine mandates that the limits that the government claims are implicit in a law “be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.” City of Lakewood v Plain Dealer Publishing Co, 486 US 750, 770; 108 S Ct 2138; 100 L. Ed 2d 771 (1988).
The United States Supreme Court has informed us that
[t]he [vagueness] doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent “arbitrary and discriminatory enforcement.” Where a statute‘s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts. [Smith v Goguen, 415 US 566, 572-573; 94 S Ct 1242; 39 L Ed 2d 605 (1974).]
But, an ethical rule that would normally be void for vagueness will escape invalidation if a state court has offered a clarifying interpretation explaining what conduct the rule encompasses. See Gentile v State Bar of Nevada, 501 US 1030, 1048; 111 S Ct 2720; 115 L Ed 2d 888 (1991).
Therefore, an enactment violates the First Amendment when it does not provide fair notice of what conduct will violate the law10 or when it gives a public official “‘unbridled discretion’ such that the official‘s decision to limit speech is not constrained by objective criteria, but may rest on ‘ambiguous and subjective reasons.’ ” United Food, supra at 359, quoting Desert Outdoor Advertising, Inc v City of Moreno Valley, 103 F3d 814, 818 (CA 9, 1996).11
Normally one whose conduct clearly violates the law may not challenge the law for vagueness. However, a challenge may be brought when First Amendment rights are implicated. United States v Mazurie, 419 US 544, 550; 95 S Ct 710; 42 L Ed 2d 706 (1975). See also United States v Powell, 423 US 87, 92-93; 96 S Ct 316; 46 L Ed 2d 228 (1975); United States v Nat‘l Dairy Products Corp, 372 US 29, 32-33, 36; 83 S Ct 594; 9 L Ed 2d 561 (1963). The rules at issue here impede the First Amendment right to free speech. Hence, respondent properly asserts his vagueness claims.
When assessing the merits of respondent‘s claim, it is important once again to consider the language of
The majority‘s inclusion in the rule of statements and conduct that take place outside a courtroom significantly enhances the rule‘s vagueness. This is because the rule, so interpreted, sets no limits on when or where an attorney is free to speak his or her mind to another person. Arguably, under the majority‘s interpretation, no time, place, or medium is safe because any unprivileged, discourteous observation about a judge communicated to another person could lead to sanctions. The possibility of selective or discriminatory enforcement occurring is enhanced when an attorney represents unpopular clients or presents controversial issues. Therefore, the rule must fall to the First Amendment.
The majority argues that we should not expect that the rule‘s parameters could be defined with ” ‘mathematical certainty.’ ” Ante at 255 (citation omitted). But this approach begs the questions whether there are parameters and what they are. Instead of offering answers, the majority merely states its belief that
I agree with the majority that there should be flexibility in our ethical rules, but I maintain that the flexibility should not stretch beyond our basic constitutional rights. Unfortunately,
These rules do not permit persons of ordinary intelligence to readily identify the applicable standard for their conduct. They allow for the strong possibility of discriminatory enforcement. Accordingly, I would find them unconstitutionally vague.
B. FREEDOM OF SPEECH
Respondent also argues that, if the rules are not unconstitutionally vague, they are an unconstitutional abridgement of his right to free speech. His argument is based on the premise that his comments were political, rhetorical hyperbole and satire protected by the First Amendment.
The initial step in a First Amendment analysis is to determine whether the comments under consideration constitute protected speech. The Grievance Administrator argues that the respondent‘s statements are not
It is true that the United States Supreme Court has stated that ” ‘[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ ” Chaplinsky v New Hampshire, 315 US 568, 572; 62 S Ct 766; 86 L Ed 1031 (1942), quoting Cantwell v Connecticut, 310 US 296, 309-310; 60 S Ct 900; 84 L Ed 1213 (1940). Chaplinsky concerned a New Hampshire statute that provided:
“No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.” [Chaplinsky, supra at 569.]
The Court‘s opinion was based on the belief that Chaplinsky‘s statements were “fighting words.” As the Court stated, “fighting words” are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 572. In fact, the Court does not mention political speech or hyperbole despite the fact that Chaplinsky‘s statements were directed toward his local government. Id. at 569. Because the case was decided on the “fighting words” doctrine, it is of little guidance to us in deciding this case.
Moreover, Chaplinsky and Cantwell, on which Chaplinsky was based, must be considered in light of the decision 36 years later in FCC v Pacifica, 438 US 726; 98 S Ct 3026; 57 L Ed 2d 1073 (1978). In Pacifica, the Court addressed whether the FCC could sanction a broadcaster for speech that was not obscene but was offensive. The Court cited Chaplinsky, but stated that some words, although lacking in literary, political, or scientific value, “are not entirely outside the protection of the First Amendment.” Id. at 746.13 The Court specified that First Amendment protection would be required if what made the radio monologue offensive “could be traced to its political content . . . . ” Id.
Contrary to petitioner‘s assertion, several decisions have given offensive speech First Amendment protection. One that is especially pertinent is Watts v United States, 394 US 705; 89 S Ct 1399; 22 L Ed 2d 664 (1969). There, the defendant was convicted of violating a statute that made it a criminal offense to threaten the life of the President of the United States. At an antiwar rally, the defendant stated that ” ‘[i]f they ever make me carry a rifle the first man I want in my sights is L.B.J. [Lyndon Baines Johnson]’ ” Id. at 706. The defendant argued that the statement was political opposition to the President. Id.
The Supreme Court reversed his conviction and held that the political hyperbole used by the defendant did not amount to a violation of the statute. In reaching its decision, the Court stated:
[W]e must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 [84 S Ct 710; 11 L Ed 2d 686] (1964). The language of the political arena, like the language used in labor disputes, see Linn v United Plant Guard Workers of America, 383 U.S. 53, 58 [86 S Ct 657; 15 L Ed 2d 582] (1966), is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interрreted otherwise. [Id. at 708.]
In the instant case, respondent is situated similarly to the defendant in Watts. He made offensive and crude comments about three Court of Appeals judges to show his opposition to their decision in a court case. Just as in Watts, when taken in context, respondent‘s statements were, in essence, satire, and hyperbole. In fact, respondent‘s statements declaring war on the judges and suggesting that they be sodomized were less troublesome than the defendant‘s statement in Watts suggesting that he would shoot the President.
This Court has expressly recognized that political hyperbole, parody, and vigorous epithets are permissible in the course of a judicial campaign. In re Chmura (After Remand), 464 Mich 58; 626 NW2d 876 (2001) (Chmura II). The majority argues that Chmura II does not apply to respondent because respondent‘s statements were not made in a political context. The majority also notes that no campaign was under way at the time respondent made his statements. Ante at 256. But the decisions in cases such as Cohen and Watts illustrate that “political speech” is not as neatly defined as the majority would like to believe. The incidents in Cohen and Watts did not occur during a political campaign.
I do not agree with the majority‘s narrow interpretation of “political speech,” nor do I believe that political hyperbole and satire should be limited to a campaign setting. Respondent‘s comments were about three public figures concerning their character and the manner in which they perform their public duties.14 While it is without doubt that respondent‘s comments were crude, it is inescapable that they were political.
The majority also argues that the statements were made during a pending case, subjecting them to less constitutional protection. As I have explained, I disagree with the majority‘s conclusion that the comments were made during a “pending” case. While situations exist when a court may constitutionally limit an attorney‘s speech, the facts of this case do not fall into that line of cases for several reasons. Even if I were to apply the lower standard the majority adopts, I would find that
In Gentile v State Bar of Nevada, 501 US 1030; 111 S Ct 2720; 115 L Ed 2d 888 (1991),15 the United States Supreme Court granted certiorari to determine whether Nevada Supreme Court Rule 177, governing pretrial publicity, violated the First Amendment. The Court addressed whether attorneys may be subject to greater restrictions on their speech during a pending case. It held:
It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to “free speech” an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial
court beyond the point necessary to preserve a claim for appeal. Sacher v. United States, 343 U.S. 1, 8 [72 S Ct 451; 96 L Ed 717] (1952) (criminal trial); Fisher v. Pace, 336 U.S. 155 [69 S Ct 425; 93 L Ed 569] (1949) (civil trial). Even outside the courtroom, a majority of the Court in two separate opinions in the case of In re Sawyer, 360 U.S. 622 [79 S Ct 1376; 3 L Ed 2d 1473] (1959), observed that lawyers in pending cases were subject to ethical restrictions on speech to which an ordinary citizen would not be. There, the Court had before it an order affirming the suspension of an attorney from practice because of her attack on the fairness and impartiality of a judge. [Gentile, supra
Using these standards, the Court adopted a balancing test. Under the test, a court must weigh the state‘s interests underlying the ethical rule at issue and the attorney‘s First Amendment rights. The Court also held that the rule must be narrowly tailored to meet the state‘s interest.16 Id. at 1076.
To fully understand the applicability of Gentile and Sawyer to this case, it is essential to look at their facts. As stated above, Gentile concerned pretrial publicity. Sawyer concerned comments made during a pending trial. It is noteworthy that neither case is directly on point. Sawyer concerned comments made by an attorney about a judge, but the attorney‘s actions took place while a trial was pending. In fact, in Gentile the Court upheld the rule because “it merely postpone[d] the attorneys’ comments until after the trial.” Id. (emphasis added). Neither case is applicable here, because respondent‘s statements were made after his client‘s case had been decided in the Court of Appeals and no trial or other legal proceeding was pending.
By deciding that respondent‘s statements are subject to less First Amendment protection because they were made during a pending matter, the majority stretches the holdings in Gentile and Sawyer. I cannot join in that distortion.
Attorneys must be free to speak about a case after it has been decided. Stifling speech while memories of the case are freshest is a disservice to the parties as well as to the public. Because of the majority‘s extension of Gentile, it could be years before an attorney could finally express his or her opinion about the judges that sat in a case. Even though the majority states that attorneys still may offer disagreement with a court decision, the ruling in this case will have a chilling effect on attorneys’ free speech.
Even if I were to apply the lower standard expressed in Gentile, I would find that
The pretrial publicity rule in Gentile was written to apply only to speech that is substantially likely to have a materially prejudicial effect. Gentile, supra at 1076. The rules at issue here lack that narrow tailoring. They are so vague that a person of reasonable intelligence could not decipher their boundaries. Nothing limits their application. Because they are not narrowly tai-
The majority asserts that the holdings of Cohen and Watts are inapplicable here because they involve the rights of everyday citizens, as contrasted with those of attorneys. I disagree. Cohen and Watts sought to define protected political speech. Neither limited its holding to everyday citizens or nonlawyers. Rather, both stand for general principles that outline the landscape of protected political speech. The majority‘s statement that Gentile overrode Cohen and Watts on the matter of defining political speech by attorneys is inaccurate. Gentile did not define political speech for lawyers or anyone else. Rather Gentile set parameters for determining whether an ethical rule may properly abridge rights protected by the constitution.
In response to the legal analysis I have provided, the majority advances yet another parade of horribles.18
Certainly the First Amendment and the rights it embodies are too precious to jettison on the basis of hypothetical situations. I have too much faith in the quality and integrity of our judiciary and our bar to believe them unable to handle capably the great responsibilities that come with free speech. I would rather risk living in the society envisioned by the majority than in one where the mere utterance of dissatisfaction could subject an attorney to harmful sanctions.
Recently, this Court held that courts should not ascribe meaning to statutes unintended by the Legislature because they fear what will develop if they interpret the language as written. Wexford Med Group v City of Cadillac, 474 Mich 192, 220 n 10; 713 NW2d 734 (2006). I believe that the majority should apply the principle stated in Wexford here when interpreting the constitution in this case.
As I have before, I find solace now in the words of Benjamin Franklin: “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”19 Here the majority is ready to give up liberty in the hope that some hypothetical future horror will not occur. We must not permit the rights protected by the First Amendment to be whittled away in this manner.
CONCLUSION
I would hold that the Attorney Discipline Board has the authority to declare unconstitutional a rule of professional conduct by virtue of this Court‘s delegation
Notes
The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. The distinctions between law and equity proceedings shall, as far as practicable, be abolished. The office of master in chancery is prohibited.
The supreme court has the power to provide for the organization, government, and membership of the state bar of Michigan, and to adopt rules and regulations concerning the conduct and activities of the state bar of Michigan and its members, the schedule of membership dues therein, the discipline, suspension, and disbarment of its members for misconduct, and the investigation and examination of applicants for admission to the bar.
One of my proudest legacies as Governor was having the honor of first appointing, then supporting jurists like Justice MAURA CORRIGAN. Justice CORRIGAN has worked to recast the Michigan Supreme Court into a nationally recognized court. Today, the MSC is one of the most important voices of judicial restraint and limited government. So esteemed is Justice CORRIGAN that she has twice been on President Bush‘s short list for the U.S. Supreme Court.
Justice CORRIGAN was elected to the Michigan Supreme Court in 1998 and served two terms as Chief Justice from 2001-2004. This November, she is seeking reelection to another eight-year term. Justice CORRIGAN has proven unequivocally by her record that Michigan will benefit from her continuing service on our state‘s highest court. We must work to retain our best and brightest.
In Michigan, we no longer have a Court where judges think that it is their prerogative to decide important policy questions. The majority on the Court understands the constitutional role of the judiciary.
Naturally, judicial activists in Michigan have been unhappy with our Supreme Court. They had grоwn accustomed to winning court rulings that they couldn‘t achieve through the democratic and representative process of government. Every time there is a state Supreme Court election, these activists are on the prowl, seeking to restore those good old days. This year will be no exception! We cannot lower our guard should the Fiegers of the trial bar raise and spend large amounts of money in hopes of altering the election by an 11th hour sneak attack.
I believe our Michigan Supreme Court is truly exceptional. We simply cannot risk a return to the days of legislating from the Bench. The court needs to keep Justice CORRIGAN, a proven, experienced, and thoughtful jurist. In the past you have contributed to the Supreme Court race. I ask that you consider making a similar contribution or as much of the maximum amount allowed by law for any individual which is $3,400. Please show your support by sending your contribution today.
Your help in returning Justice Maura CORRIGAN to the Michigan Supreme Court will protect the growing reputation of Michigan‘s highest court.
Out of the multiple entries under “toward” in a dictionary, the majority selects the two definitions that it perceives as useful to its conclusion. This ignores, first, that there are other definitions of “toward” that do not support its conclusion and, second, that there are a substantial number of other sources and considerations that assist us with determining the scope of the ethics rule at issue. Notably, the majority‘s analysis unhelpfully ends with its selective citation of the first and fourth entries under “toward.” See ante at 251. Further, discriminating readers will recognize that the majority‘s choice to use the definition “in the direction of” to support its conclusion is nothing but a truly strained application. For example, the joint opinion of the majority justices is misleading when it states that this dissent is largely grounded in “statements that occurred between six and ten years ago.” Ante at 267. Less than 6 months ago, Justice CORRIGAN‘s campaign committee mailed a fund-raising letter saying, “We cannot lower our guard should the Fiegers of the trial bar raise and spend large amounts of money in hopes of altering the election by an 11th hour sneak attack.” Less than 7 months ago, Justice MARKMAN, who is currently a defendant in a federal lawsuit initiated by Mr. Fieger, filed a motion for sanctions underFurther, the joint opinion of the majority justices inaccurately says that my concern over this Court‘s disqualification procedures began “only after Mr. Fieger ceased targeting her with these motions.” Ante at 280. As I explain in part D of this opinion, since May 2003 I have consistently called for this Court to address the need for clear, fair disqualification procedures for justices, including in two cases in which Mr. Fieger had requested that I recuse myself.
(A) Authority of Commission. The Attorney Grievance Commission is the prosecution arm of the Supreme Court for discharge of its constitutional responsibility to supervise and discipline Michigan attorneys.
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(E) Powers and Duties. The commission has the power and duty to:
* * *
(2) supervise the investigation of attorney misconduct, including requests for investigation of and complaints against attorneys[]
(A) Authority of Board. The Attorney Discipline Board is the adjudicative arm of the Supreme Court for discharge of its exclusive constitutional responsibility to supervise and discipline Michigan attorneys.
* * *
(E) Powers and Duties. The board has the power and duty to:
(1) appoint an attorney to serve as its general counsel and executive director;
(2) appoint hearing panels and masters;
The United States Supreme Court has since extended this principle to civil cases. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825; 106 S. Ct. 1580; 89 L. Ed. 2d 823 (1986). See also Ponder v. Davis, 233 N.C. 699, 704; 65 S.E.2d 356 (1951) (“A fair jury in jury cases and an impartial judge in all cases are prime requisites of due process.“).
The majority correctly states that the ability to answer constitutional questions is a core judicial function. However, standing alone, the statement does not explain why this Court lacks the power to delegate its authority to a body that it created. Perhaps the majority is confusing the ability with its perception of the advisability of such a delegation.That canon prohibited candidates for judicial office from using any form of communication that the candidate knew or reasonably should have known was false, fraudulent, misleading, or deceptive or that contained a misrepresentation, omitted certain facts, or created unjustified expectations. See id. UnderThe Supreme Court has the power to provide for the organization, government, and membership of the state bar of Michigan, and to adopt rules and regulations concerning the conduct and activities of the state bar of Michigan and its members, the schedule of membership dues therein, the discipline, suspension, and disbarment of its members for misconduct, and the investigation and examination of applicants for admission to the bar.
Republican Party of Minnesota v White, supra at 775 (emphasis in original). The majority argues thatBut this holding does not necessarily mean that after a case has been dismissed it is still to be considered pending during the entire term at which the order of dismissal was made within the meaning of the contempt rule above set out. . . . To rule otherwise would be to narrow the limits of permissible criticism so greatly that the right to criticize would cease to have practical value. [Coleman, supra at 1261.]
That a lawyer‘s role as an officer of the court is distinct and has been recognized as such can be seen, for example, in the frequent discussions
of the standards of ethical behavior in the regular columns of the President of the Michigan State Bar in the Michigan Bar Journal. As merely one illustration of this recognition, in the March 2006 edition, the current President, Thomas W. Cranmer, asserts that “[l]awyers operate under strict ethical rules, and the rules are enforced” and “[o]ur disciplinary system is rigorous and active.” Cranmer, Defending Lawyers, 66 Mich BJ 14 (March, 2006). The referenced rule addressed conduct prejudicial to the administration of justice. Id. at 776. The majority argues that discriminatory enforcement is not of concern because the Attorney Grievance Commission‘s actions can be reviewed on a case-by-case basis. However, the United States Supreme Court knew and considered this argument before writing its vagueness jurisprudence. It realized that every discriminatory application of the law may be correctable at some point, but the idea behind the vagueness doctrine is to prevent discriminatory enforcement in the beginning. Therefore, standing alone, this argument is insufficient to save vague rules from being found unconstitutional.We note that
Id. (emphasis in original). The majority stresses that respondent referred to the judges as “Hitler,” “Goebbels,” and “Eva Braun.” But, offensive though it is, reference to political figures as Nazis is a common form of political satire. See <http://semiskimmed.net/bushhitler.html> (accessed May 18, 2006).In carrying out the responsibilities of self-government, “we the people” of Michigan are responsible for our own actions. In particular, when the citizen acts in what is essentially a legislative capacity by facilitating the enactment of a constitutional amendment, he cannot blame others when he signs a petition without knowing what it says. It is not to excuse misrepresentations, when they occur, to recognize nonetheless that it is the citizen‘s duty to inform himself about the substance of a petition before signing it, precisely in order to combat potential misrepresentations. [Emphasis added.]
The majority‘s discussion of the First Amendment rights of judges is obiter dictum. The issues in this case involve attorney speech. Whatever challenges to the Michigan Code of Judicial Conduct that may arise in the future have nothing to do with whether the comments made by respondent and complained of here are protected speech.
It should be noted, in passing, that the majority, in its joint opinion, overstates the holding in Republican Party of Minnesota v White, 536 US 765, 781-782; 122 S Ct 2528; 153 L Ed 2d 694 (2002). White does not allow judges or judicial candidates to attack a third party by name, even if the third party supports the candidate‘s opponent. The holding in White is that judicial candidates may speak on disputed legal and political issues. Id. at 776-777. In fact, White implies that speech that implicates a particular person may show bias and is properly sanctioned. Id.
The majority‘s treatment of White is yet another instance of the mischaracterization of case law made throughout the majority‘s opinions. For a full discussion of this pattern see Justice CAVANAGH‘s dissent, ante at 320-325.
This order should not be construed as signaling any reduced interest on the part of this Court in upholding standards of professional civility and in enforcing attorney discipline when allegedly libelous or slanderous remarks are made by attorneys. I believe that the respondent‘s remarks here were irresponsible and reprehensible, but ultimately I would defer to the judgment of the Attorney Discipline Board that they were not sanctionable.... [469 Mich 1241.]
469 Mich 883 (2003).(3) A candidate for a judicial office:
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(e) may respond to personal attacks or attacks on the candidate‘s record as long as the response does not violate subsection A(3)(d).