Maldonado v. Ford Motor Co.

476 Mich 372 372 MALDONADOv FORD MOTOR COMPANY July application Docket No. 126274. Decided 2006. On defendant Company appeal, Supreme Ford Motor leave to for the Court argument grant application oral ordered on whether to the or take peremptory Following argument other action. oral and in lieu of granting appeal, Supreme judg- leave to the Court reversed the Appeals ment of the Court of and reinstated the trial court’s order dismissing the action. brought Wayne Justine Maldonado an action in the Circuit Court against Bennett, Company alleging Ford Motor and Daniel E Bennett, Ford, supervisor sexually plaintiff at the harassed in Act, Rights seq. violation the Civil MCL et 37.2101 Kathleen Macdonald, J., original judge assigned case, the to the entered an excluding prior exposure order evidence of Bennett’s indecent Appeals appeal The conviction. Court of denied from leave to (Docket unpublished order, July 2, an order in entered No. 233449). Supreme appeal. The Court denied leave to 465 Mich 971 (2002). exposure expunged Bennett’s indecent conviction was in proceedings Supreme court district before the Court denied leave appeal. reassigned The circuit action court to William J. Giovan, J., who thereafter denied the motion to dissolve previous excluding order expunged the evidence of the conviction. subsequently Ford moved to dismiss the on the action basis that plaintiff engaged improper pretrial the and her had counsel in publicity tainting potential jury pool, including aimed at the repeated making expunged references in conviction media opinion dismissing interviews. The court an entered and order prejudice, concluding plaintiff action with and her counsel engaged premeditated designed tamper had in misconduct with justice the administration of and that no sanction lesser would Appeals, deter the or her counsel. The Court of Borrello, EJ., (White, J., concurring part dissenting Smolensk!, part), part, part, affirmed in reversed in remanded for evidentiary hearing to determine whether the comments of the actually prejudiced jury pool. Unpub- and her counsel (Docket opinion per curiam, April 22, lished issued No. 243763). sought appeal. Supreme Ford leave to Court ordered Motor Co Ford Maldonado v application other grant or take argument on whether oral (2004). Mich 940 peremptory action. 471 joined Justice Chief opinion by Justice In an Corrigan, Supreme Court held: Young and Markman, and Justices Taylor dismissing the in abuse its discretion court did not The trial warning prohibiting explicit action, and the trial court’s the expunged did not violate conviction to Bennett’s references Amendment. First authority to sanction possess the inherent 1. Trial courts counsel, including authority an to dismiss the

litigants their and authority express direct and control the also have action. Courts power of its inherent proceedings A court’s exercise before them. finding has been a clear only upon that there may be disturbed must of review of discretion standard discretion. An abuse abuse of The standard review de novo. more deferential than be one that is there will acknowledges in which there will be circumstances Rather, he more than one single there will correct outcome. be no selects one principled a trial court outcome. When reasonable and outcomes, not abused its principled trial court has the of these reviewing defer to and, thus, proper court to is for the discretion it judgment. in this case did The trial court trial court’s the dismissing plaintiffs case because the the in abuse its discretion intentionally publicized attorneys repeatedly and plaintiff and her jury pool, potential the in order to taint inadmissible evidence trial, the due administra- deny fair and frustrate the defendants a because justice. not abuse its discretion The trial court did tion of authority action and dismiss the possessed inherent the if would result plaintiff her counsel that dismissal the and warned by the publicize inadmissible they evidence ruled continued to court. plaintiff speech her of and limitation on the 2. The trial court’s protecting necessary at limitation aimed counsel was a narrow right preserving the to a fair jurors prejudice and

potential from jurors, the First Amendment. by impartial and did not offend trial improper holding Appeals in that dismissal of erred The Court actually likeli- jury pool tainted. The substantial unless the constitutionally prejudice constitutes standard hood of material rights of attor- Amendment permissible the First balance between The in fair trials. neys pending the state’s interest cases and of prejudice. The Court likelihood of a substantial trial court found remanding of matter for a determination Appeals the erred in Appeals be must judgment of the Court of prejudice. The actual dismissing must the action court order of the trial and the reversed be reinstated. 476 Mich judgment Appeals Court of reversed and circuit order of court dismissal reinstated. joined by Justice Justices Cavanagh, Weaver Kelly, dissenting, that the stated trial court abused its discretion in dismissing prejudice. opinion the action with The of Appeals majority, the Court of should The be affirmed. its preserve organized polity, desire finds that the comments plaintiff attorneys justify of the and her the trial court’s However, prejudice. decision to dismiss the action with the attorneys plaintiff comments of the her fall well within the protection parameters of of First Amendment. The attorneys substantially conduct and her was not likely materially prejudice explicit trial. There nowas

warning from the trial court case that the would be dismissed if expunged remarks about the conviction were made. Comments did not indicate that she believed that she was expunged under court order not to on the comment conviction. majority’s position effectively negative critiques silences justice system parties commanding and its in cases the most interest, public removing the cases from the arena options discourse. The trial court had numerous other have less would been extreme than the drastic measure of prejudice. dismissal with The of conduct the and her attorneys Michigan also did violate Rules of Professional Cavanagh 8.4. Conduct 3.5 and Justice also concurred with Justice Weaver’s dissent. joined by dissenting, Justice Justice stated that Kelly, Weaver, Cavanagh’s fully she concurred in Justice dissent wrote separately explain premise to that the of the circuit court’s plaintiffs validity. legal dismissal of the case had no Because only applies lawyers, MRPC 3.6 to of the conduct the circuit court by dismissing abused its discretion the on the case basis of rule and the court’s of attribution the activities lawyers. majority her by concluding to errs further 2.504(B)(1) dismissal was nonetheless warranted under MCR applicable no of an when violation court rule court or order

justified the dismissal. Litigants — — — 1. Courts Trials Misconduct and Counsel Sanctions. possess authority litigants Trial courts to the inherent sanction counsel, including action; authority their the to dismiss an courts express authority proceedings have to direct and control the before (MCL 2.504[B][1]). 600.611; them MCR v Motor Co Ford Opinion of the Court — — Speech — — Law Freedom of Evidence Constitutional 2. Courts Trials — Restrictions. litigant may to from court and its counsel refrain A trial direct litigant publicizing ruled about another has been information being impermissible evidence and as as other-acts inadmissible narrowly prejudicial probative; such a restriction is more than protect jurors necessary potential the sub- from tailored and prejudice preserve right the to a fair stantial likelihood of and to jurors, Amend- impartial and it not violate First trial does ment. & EC. B. (by George Washington Washington,

Scheff Massie), plaintiff. and Miranda K.S. for the Pelton, (by Kienbaum & P.L.C. Opperwall Hardy Baumhart) {Patricia Julia Hardy Elizabeth Turner Powell, counsel), and for Ford Boyle, J. of Robert W. Company. Motor

Amicus Curiae: Moss, and Kary J. L. Christine Steinberg,

Michael Chabot, for Union Fund of American Civil Liberties Michigan. In this case consider essential we

CORRIGAN, proceedings authority trial courts control pertains issue in to the before them. The this case authority govern of a trial court’s the conduct extent clients in proceedings. of counsel and their court Where us to rules Michigan authorizes make Constitution authority to enforce govern proceedings, court heart preserv- rules At the inescapably those follows. attend to relevant ing organized polity, we must antagonis- issues, including belligerent, concerns over end, affirm tic, lawyering. To we incompetent authority appro- trial courts to sanctions impose the so as ensure prevent to contain and abuses priate orderly operation justice. 476 Mich

376 372 Opinion of the Court possess reiterate that trial inherent We courts the authority counsel, litigants to sanction and their includ- Serban, ing power Banta v dismiss action. 367, 368; (1963); Mich 121 NW2d 854 Persichini v 626, Beaumont Mich Hosp, App 639-640; 607 NW2d (1999); MacDonald, v App 186, Prince 237 Mich (1999). 189; power governed 602 NW2d 834 This is not by statute, so rule much but control necessar- ily to manage vested courts their own so affairs as to and orderly expeditious achieve disposition cases. NASCO, Inc, See Chambers v 43; 501 US 111 S Ct (1991). 2123; 115 L Ed 2d 27 further acknowledge We that our trial courts also express authority have and pro- direct control the ceedings before them. MCL provides 600.611 “[cjircuit jurisdiction courts have power to make proper fully order effectuate the circuit courts’ jurisdiction judgments.” Additionally, MCR 2.504(B)(1) provides that the plaintiff “[i]f fails to comply with these rules or a order, court a defendant may move for against dismissal an action or a claim that defendant.” case,

In instant we consider whether trial court abused its discretion in dismissing plaintiffs case her attorneys because repeatedly and intentionally publicized inadmissible evidence so as to taint the potential jury pool, deny defendants fair trial, and frustrate the due justice. administration of We conclude because the trial court possessed the authority action, inherent to dismiss the and because trial court warned and her counsel that dismissal would if they result continued to publicize evidence ruled inadmissible court order, the trial did not court abuse its in dismissing plain- discretion tiffs case. 377 Co Ford Motor v Opinion of the Court dismissal trial court’s whether also consider

We intentionally dis- case because of publicizing from to refrain warning explicit its obeyed E Bennett’s Daniel defendant regarding information The First Amendment. conviction violated excluded her of speech on the limitation trial court’s aimed at limitation necessary a narrow counsel was v See Gentile prejudice. from jurors potential protecting 2720; 115 1030; 111 S Ct Nevada, 501 US Bar State of (1991). narrow restriction The trial court’s 2d 888 L Ed Amendment. offend the First did not speech on that dismissal requirement of novel Appeals Court tainted actually jury pool unless improper test prejudice of likelihood the substantial conflicts with Moreover, impossible taint” is an “actual of Gentile. nearly three standard, especially where unworkable Accord- incidents occurred. since the years passed have Appeals of the Court judgment ingly, we reverse dismissing plain- order the trial court’s and reinstate complaint. tiffs HISTORY PROCEDURAL

I. PACTS AND UNDERLYING of defen- Maldonado, employee Flaintiff Justine Ford, against filed suit Company, dant Ford Motor Bennett, Daniel sexu- Ford supervisor, that a alleging Michigan Civil her in violation ally harassed (hereafter et Ford (CRA), seq.1 37.2101 Act MCL Rights defendant) to exclude evidence in limine moved conviction. exposure indecent Bennett’s 1995 to the assigned Macdonald, original judge Kathleen an order and entered motion case, defendant’s granted 1 Bennett Daniel actions which previously considered other haveWe Co, harassment, 472 Mich v Ford Motor Elezovic of sexual was accused Co, Mich (2005), Motor 408; v Ford and McClements 697 NW2d 851 (2005). (2005), 373; Mich 1201 mod 474 702 NW2d 166 [July- 476 Mich 372 Opinion of the Court February 2001, excluding evidence of

on Bennett’s case action prior conviction and in another Co, brought against Bennett, Elezovic v Ford Motor (2005).2 408; Mich 697 NW2d 851 Plaintiff thereafter sought appeal leave to to the Court of and this Appeals regarding Judge Court Macdonald’s decision to exclude Both prior Appeals conviction. the Court of and this denied plaintiffs application.3 Court 11, 2001,

On September less than a month before 3, 2001, settlement conference scheduled for October shortly and after a three-week in resulting trial the Elezovic case, directed verdict for in defendants plaintiffs press counsel issued a release on firm letter- that head referred to Bennett’s indecent con- exposure viction, Judge of Macdonald’s exclusion that conviction evidence, the as and trial A impending this case.4 2 case, Judge In the Elezovic Macdonald also order issued an directing that be witnesses instructed that reference to Bennett’s any excluded conviction other excluded evidence would be consid court, contempt sanctions, including ered a of and would result in compensation to the court in the case of a All mistrial. the witnesses case, including plaintiff Maldonado, signed in that Justine statements indicating they ruling regarding had been advised of the court’s evidence, they inadmissible were not to mention excluded evidence, they and that understood that sanctions would from result mentioning any excluded evidence. notes, Judge stated, upon entering As Justice Macdonald Cavanagh exclusion, might the order of that she reconsider her decision to exclude during the evidence course of trial if need be. Justice CAVANAGH, however, erroneously relies on this statement to conclude that precluded mentioning her counsel from were “ever indecent omitted). exposure public again (emphasis conviction ....” Post at 408 Judge throughout order Macdonald’s remained in effect case. this As such, plaintiff by and her counsel bound were the order. 3 (2002). Mich 465 971 4 only, counsel, claims Justice and not her made Weaver Judge statements about the excluded conviction after Macdonald September press release, however, entered the order of exclusion. The Co v Ford Motor Opinion of the Court publications media print of news broadcasts series prior to Bennett’s references followed, with replete conviction.5 exposure indecent 9, 2001, Bennett’s

On November proceedings. court in district expunged was conviction 11, 2002, Judge Macdonald January dated By order 8, 2002. July trial date of established assigned 2002, Macdonald February Judge In Consequently, the circuit court. family division Giovan. lot to William reassigned this case was hearing regard- Giovan held a 17, 2002, Judge May On not cur- evidence admissibility propensity ing the the media counsel invited Plaintiffs rently at issue. closing the order Judge Giovan’s hearing. Despite directed the media,, counsel hearing to conviction, by plaintiffs was issued to the excluded which referred of exclusion was entered. after the order counsel stemming publications from following is a list of the 2001, release, many 11, press refer to September which counsel’s (1) story, Press wire The Associated excluded conviction: (2) conviction; 12, 2001, referencing an article September the excluded 13, 2001, referencing Press, September the excluded in the Detroit Free (3) International, conviction; October the United Press an article (4) conviction; 10, 2001, referencing The Associated the excluded 10, 2001, referencing story, excluded convic October Press wire (5) tion; held at the law office of Scheff a Fox 2 news broadcast 2001, referencing excluded conviction Washington, October (6) closeup papers; news conviction WDIV providing a of the propensity 10, 2001, referencing broadcast, the excluded October (7) 11, 2001, Press, evidence; in the Oakland October an article referencing excluded conviction. plaintiffs counsel that we assert that contends Justice Weaver publications. no assert conviction in these We referred to the excluded Rather, merely publications from stem thing. state that these such we words, 11, 2001, press In other it September release. plaintiffs counsel’s publi- prompted press the mass plaintiffs release that counsel’s designed press to draw media release was counsel’s cations. Plaintiffs above, and, indeed accom- as shown the excluded conviction attention to goal. plished its 380 476 Mich 372 Opinion of the Court media to wait outside until the hearing concluded to discuss details regarding the hearing.

Immediately following hearing, Judge Giovan met all with counsel plaintiffs discuss counsel’s continued public references to Bennett’s prior convic- tion despite Judge Macdonald’s previous court order and the expungement of the conviction. Bennett’s coun- pointed sel out plaintiffs counsel’s appar- behavior ently violated MCL 780.623(5),6 which criminalizes the use, divulgence, or publication of information regarding an expunged conviction. Plaintiffs counsel responded by stating that “it was worth the risk” to continue to publicize expunged conviction.7

Judge Giovan declined to order plaintiffs counsel to 780.623(5) obey MCL because he considered it redun- dant to order an attorney to follow the law.8 Despite expungement statute states: Except provided (2), person, as in subsection other than the

applicant, who knows or should have known that a conviction was set aside under divulges, uses, this section publishes and who concerning information a conviction set aside under this section is guilty punishable by imprisonment of a misdemeanor for not more days than 90 $500.00, or a fine of not more than [MCL or both. 780.623(5).] meeting Plaintiffs counsel’s comments at this also demonstrate that counsel continued to make references to the excluded despite order, contrary evidence the court to Justice Weaver’s contention. Cavanagh Justice Judge mischaracterizes Giovan’s refusal to un necessarily attorney order an require follow the law as a refusal to parties referencing to refrain from the excluded evidence. Justice Cavanagh’s miseharacterization thought that “the trial court never preposterous. issued an order” in this case Post at 420. While specifically gag order, Giovan did not did, enter a he on numerous occasions, parties by Judge direct the to abide Macdonald’s order of exclusion, subsequently he denied motion to dissolve the order, orally parties and he warned the that dismissal would result for Moreover, failure to abide the order. Cavanagh’s Justice mischar- 381 Motor Co v Ford Opinion of the Court counsel that of confidence expression Judge Giovan’s the court- left law, counsel plaintiffs follow would meeting media. This waiting met with room and cover- press news television in extensive resulted Bennett’s ex- again referred of which age, some of the exclusion possible and the conviction punged thereafter, plaintiffs Shortly evidence.9 propensity May at a 28 this case again discussed counsel spon- 1, 2002, rally in Ann Arbor a June meeting and (Coalition Ac- Defend Affirmative by BAMN sored Fight for Rights tion, Immigrant & Integration Necessary).10 by any Means Equality Mac- moved dissolve subsequently Plaintiff conviction excluding prior order donald’s 21, 2002, Judge Giovan On 13 and from evidence. June coun- hearing, plaintiffs During heard the motion. in the published an article had been mentioned that sel Metro-Times, a free 12-18, 2002, issue of the June in the readily available courthouse weekly publication ap- imminent. The article jury where selection and refer- page newspaper the front on peared by plaintiffs transcript own is rebutted of the lower court acterization it, way comment, way [Judge Giovan] he wants “If we don’t act the fit, my prejudice.” dismiss case with he sees then he’ll 9 stemming plaintiffs following publications from of the is a list media, 2002, meeting of which also May with the some counsel’s (1) before trial: a WDIV news that had been excluded referred to evidence evidence; 2002, referencing propensity broadcast, May 17, the excluded (2) broadcast, 17, 2002, referencing May the excluded also a WXYZ news (3) story, May evidence; local wire propensity The Associated Press 17, 2002, referencing expunged conviction. contention, contrary we do not assert Again, Justice Weaver’s actually excluded evidence in references to the counsel made Rather, publications from stem publications. assert these we these meeting with the media. counsel’s Massie, Washington, counsel, George and Jodi Miranda Plaintiffs organization. Masley, of the BAMN are all members 476 Mich Opinion of the Court expunged

enced Bennett’s conviction. This article prompted following colloquy: But, you know, you

The Court: since mentioned the article, coming thought where’s this from? I that there is a prohibition against speaking making counsel public to — designed statements to affect trial. Hardy certainly

Ms. counsel]: There is. There’s [defense prohibits intentionally ethics rule which counsel from trying jury pool by making taint aware of evidence, exactly excluded which is occurring what’s been quite for some time. being

The Court: Is quoted counsel in this? Washington [plaintiff’s Mr. counsel]: I think counsel on not, both Morgan sides. Ford was but Mr. and Ms. Massie I quoted, and were both quoted. all The Court: I’m not sure —well— Hardy: initiated, doubt, Ms. It was without a and Mr. Washington this, by will not dispute Washington, Mr. as all press has office, been initiated his and the constant issue, publicity really is one but the serious issue is the Washington Mr. press make sure that effort continues to report evidence or concerning this information expunged somehow, conviction so way, that some irrespec tive this Court’s ruling — ^[11] 11Although quotations the article contained from both counsel, counsel and defense attorney defendant claimed that provided reporter with the extensive information in the article regarding Bennett’s deny excluded conviction. Plaintiff did not allegation. Justice counsel, contends that because Bennett’s Cavanagh on two occasions, publicly conviction, referred plaintiff Bennett’s excluded punished behaving should not be for as defense counsel did. We acknowl- edge publicly that Bennett’s counsel referred to Bennett’s excluded disagree, however, conviction. We that defense counsel’s behavior mir- rored that of and her counsel. Bennett’s counsel’s limited prompted references to the excluded by plaintiff evidence were and her counsel. Defense attempt counsel’s statements were made in an damage by plaintiffs minimize the caused and her counsel’s numerous Ford Motor Co v Opinion of the Court this, making any I’m not decisions about but The Court-. you going thing. to tell one I ever reach the conclusion I’m If obligation somebody violating that ethical jury, I causing difficulty getting in our will some fair or, say, I on the prejudice, the case with and should dismiss side, just everyone grant judgment. a default want other And counsel is involved can to know that. then whatever [Emphasis added.] client. answer to their denied the motion to dissolve Mac- The court order of exclusion. previous donald’s 2002, later, on June days Three had at which time she admitted that she deposed, regarding expunged facts conviction disclosed disallowing the trial court’s order such evi- despite following colloquy place: dence. The took you give ballpark figure, counsel]: If can me a [Defense many you expunge- about the how times since found out you people about the fact that Mr. ment have told other expunged? this conviction that later Bennett had was people, period, one counsel]: You mean at [Plaintiff’s person at a time? Any individual, groups, counsel]: it’s whether [Defense it, many gone publicized divulged has out and

how times she it. I no idea. been a lot. have It’s

[Plaintiffl: Q. 100? Over

A. I don’t know.

Q. Over ten? Oh, definitely ten, possibly over over 100.

A.

Q. Okay. Internet, put I it out get If I could it out on the would A. on the Internet.

public and her to the excluded evidence. Unlike references evidence, regarding public excluded defense comments counsel’s potential jury pool counsel’s comments were not intended taint plaintiff. prejudice and cause Mich Opinion of the Court Moreover, plaintiff admitted her during deposition on 24, 2002, June that she would continue to disclose facts regarding expunged Bennett’s conviction. She stated: you’re A. I’m whining aware that crying because talking

I’m town, yes, it about all over I am aware of that. up won’t shut it, about it. It’s the expunge truth. You can truth, but going it, you it’s and I’m to tell know anybody what? I will tell that will listen because this man ais menace and stopped, you he must be it know and you you guys [sic]. know But protect him, want to that’s fine, I’m not. I don’t protect have to Mr. Bennett.

Q. you’ve So talking been about it— anyone. A. To

Q. —any you get, anyone— chance Right. A. That’s Q. though-even you —even since became aware that it expunged? Absolutely.

A. Yes. 26, On June 2002, days two after the deposition, plaintiff and certain of her counsel participated in a “Justice for Justine Committee” demonstration outside Ford headquarters. During the demonstration, partici- pants distributed leaflets to the containing infor- mation regarding expunged conviction and evi- dence regarding Bennett’s alleged behavior toward other female Ford employees that the trial court had ruled inadmissible. The leaflet also stated that Judge Giovan “is in Ford’s pocket” and trying “is to keep the truth out of the courtroom.” Also on day, a television interview was broadcast on WDIV Channel in which plaintiff stated: If we don’t way act the [Judge it, he Giovan] wants way fit, he sees my then he’ll dismiss prejudice. case with is,

And what he doesn’t me, know it doesn’t bother because I’m going quit fighting against to sexual harassment. Co 385 v Ford Motor op the Court 26, to that held on June A similar demonstration at the Ford Wixom 2002, following day held the was a leaflet was distributed.12 at which similar plant, to 28, 2002, defendants moved dismiss On June her coun- suit on the basis aimed at publicity engaged improper pretrial sel 1, 2002, July On jury pool. tainting potential Judge Gio- by moving disqualify plaintiff responded heard and denied 3, 2002, Judge Giovan July van. On counsel, Miranda day, plaintiffs The this motion. same on Massie, in a television interview broadcast appeared WDiy 4. She stated: Channel company feeling, and it’s hard

Metro Detroit has town judges you’re get hearing from of these when a fair They’ll Company. stop at going against the Ford Motor nothing the culture of abuse that exists to maintain get it hard to unbiased plants, those and we’ve found cases.[13] judicial rulings in these 8, 2002, was July jury On the date on which selection begin, Judge Timothy Kenny plaintiffs appeal heard disquali- denial of the motion for his Judge Giovan’s 8, 2002, July fication and affirmed the denial. Also on Judge heard defendant’s motion dismiss.14 Giovan and her were Throughout hearing, plaintiff counsel 12 following publications the June 26 and 27 stemmed from (1) broadcast, 26, 2002, showing June demonstrations: a WDIV news (2) holding signs stating, “Ford, stop buying judges”; picketers on Click 26, 2002, referencing Detroit, article, Channel 4 website June (3) evidence; propensity an article in the Detroit exclusion of the News, June 2002. broadcast, following publications As a result of this news were (1) article, 3, 2002, Detroit, July released: a Click on Channel website referencing plaintiffs belief that Giovan was and her counsel’s (2) broadcast, July 3, 2002, biased; in which a Channel 50 news money buy justice. plaintiff stated that cannot Detroit, day, published article on the Click on Also on this concerning Judge alleged bias. Channel 4 website Giovan’s 476 Mich

Opinion op the Court discourteous to and uncooperative with the court. Spe- cifically, in response question, you to the court’s “Are member of the ‘Justice for Justine’ plain- committee?” counsel, tiffs Masley, responded by Jodi stating: Nobody’s my you asked ever me that in life. know I— fully support Justine”, you know, what. I the “Justice for They every right committee. have everything they to do participate [want]. And did I in a demonstration that was called committee, the “Justice for Justine” I did. Judge Giovan attempted to respond to Ms. Masley’s comment, she interrupted him, but stating, mean, “I have I or have I ever been a member of the Party, Communist is that Moreover, what this is?” in response Giovan’s inquiry regarding whether members of the “Jus- for tice Justine” committee were present court, in the Ms. Masley stated: you guys

Have even ever heard of phrase “Freedom of association... ?” they have no idea. Do identify need to their know —

political affiliations ... ? (Interposing) you guys Who did vote for in the last judicial election? The hearing continued into the following day. At the conclusion of the two-day hearing, plaintiff requested permission to file a supplemental brief, which Judge granted. Giovan

On August 21, 2002, Judge Giovan issued an opinion and order dismissing plaintiffs case prejudice, with concluding that plaintiff and her counsel had engaged in premeditated misconduct designed to tamper with Ford Motor Co v Opinion of the Court and that no lesser sanction justice administration her deter counsel.15 would part, affirmed reversed Appeals, The Court of authority the trial court’s acknowledged part, but remanded the case to the plaintiff’s complaint, dismiss hearing to determine evidentiary trial court to hold an actually her counsel’s comments whether prejudiced jury pool.16 to this Court. We sought appeal

Defendant leave argument the clerk to schedule oral on whether directed take grant application peremptory or to other action.17

II. STANDARDof review to determine whether the Court requires This case us 15 Judge improperly attributed Justice Weaver contends that Giovan responsibility plaintiffs improper for references to counsel. As however, clearly demonstrate, Judge properly deter these facts Giovan plaintiff engaged designed her in mined that both counsel behavior potential jury pool. taint plaintiff by any Justice further contends that was not restricted Weaver making repeated order or court rule from references to Bennett’s disagree prior conviction. While we with the contention that no order or making pubic to the court rule barred from references excluded evidence, that, we reiterate whether a court order existed whether a court evidence, applied, plaintiff repeatedly publicize rule was not free to excluded only logically especially impending. with the trial conclusion that can be plaintiff’s repeated the excluded is that drawn from references to conviction improperly attempting to admit the excluded evidence principled Consequentially, means of the mass media. Giovan chose a authority dismissing plaintiff’s protect option in order to within his case Banta, 368; Co, justice. supra Cummings Wayne the administration of at v (1995), App 252; citing & 210 Mich 533 NW2d 13 Buchanan Home (D Co, 242, 244-245 Supply Supp F Auto Co v Firestone Tire & Rubber 544 1981). SC, 16 Unpublished opinion per Appeals, April curiam of the Court of issued (Docket 243763). 22, 2004 No. 17 (2004). Mich 471 940 476 Mich 372 op the Court Appeals erred in reversing the trial court’s dismissal

of this case. Trial courts possess the inherent authority to sanction litigants counsel, and their including the right Banta, dismiss action. supra at 368. “An exercise of the court’s ‘inherent power’ may be dis- only upon turbed finding there been has a clear abuse of discretion.” Kolk, Brenner v App 149, Mich (1997). 160; 573 NW2d 65 A trial court’s dismissal of a case for failure comply with the court’s orders is also reviewed for an abuse of discretion. Carter, Thorne v 90, 93; 149 Mich App (1986); 385 NW2d 738 MCR 2.504(B)(1).

In People Babcock, v 247, 269; 469 Mich 666 NW2d (2003), this Court noted that an abuse of discretion standard must be one that is more deferential than novo, review de but less deferential than the standard set forth in v Spalding Spalding, 355 Mich 382; 94 (1959). NW2d 810 This Court stated that “an abuse of discretion standard acknowledges that there will be circumstances which there single will be no correct outcome; rather, there will be more than one reasonable and principled Babcock, outcome.” supra at 269. The Babcock Court further noted that “[w]hen the trial court selects one of these outcomes, principled the trial court has not abused its and, discretion thus, it is for proper the reviewing court to defer to the trial court’s judgment.” Id. While Babcock dealt with a criminal issue, sentencing we prefer the articulation of the abuse of discretion standard in Babcock to the Spalding and, thus, test adopt it as default abuse of discretion standard.

Additionally, in cases raising First Amendment is- sues, an appellate court obligated is to independently review the entire record to ensure that the lower court’s “ ‘ judgment “does not constitute forbidden intrusion Ford Motor Co 389 v Opinion of the Court ’ ” Gentile, supra field of free at expression.” of the 1038, Bose v Consumers Union United quoting Corp of States, Inc, 485, 499; 1949; L Ed 466 US 109 S Ct 80 2d Sullivan, (1984), New York Times Co v 376 quoting 502 (1964). 254, 258; 710; 11 L Ed 2d 686 US 84 S Ct

III. ANALYSIS A. TRIAL COURT’S AUTHORITY TO SANCTION LITIGANTS FOR UNETHICAL BEHAVIOR above, possess As trial the inherent stated courts counsel, authority litigants and their includ- sanction Banta, an action. at 368. ing power supra dismiss “The for authority litigant to dismiss lawsuit miscon- and, duct is a creature of the ‘clean hands doctrine’ despite origins, applicable equitable its to both Co, v legal damages Cummings Wayne claims.” 210 249, 252; (1995), Mich 533 13 Bucha- App citing NW2d nan Home & Auto Co v Firestone Tire & Rubber Supply (D 1981). Co, SC, F 242, 244-245 “The Supp authority is rooted in a court’s fundamental interest protecting judicial its own and that of the integrity process.” Cummings, supra at 252. “The ‘clean hands only doctrine’ for the applies protection of the parties Id., but also for the of the court.” protection Home, citing Buchanan at 244. supra Moreover, Michigan Constitution confers on the judicial department authority necessary all the to exer- government. cise its as a coordinate powers branch 1963, 3, § 2 powers govern- “Const art divides the ment three and commits to each among branches functions properly branch exclusive exercise it, belonging except expressly provided as otherwise 267, 660, In PA Mich the Constitution.”18 re 1976 Const art 3, § 2 provides: 390 476 Mich 372 Opinion of the Court (1977). 6, 662; judicial § 255 “Art 1 NW2d 635 vests power exclusively justice.”19 of state one court of article[20] Id. “Section 4 general superin of vests tending control over all courts in the in the state § Supreme upon Court and 5 confers this Court the to make power govern practice proce rules to and dure within the courts.”21 “It Id. is also well settled that government under our form of the Constitution confers judicial department on the all the authority necessary powers govern exercise its as a coordinate branch of judicial ment.” Id. at 662-663. “The powers derived from the Constitution include rulemaking, supervisory powers government branches; The of are divided into three legislative, judicial. person exercising powers executive and No powers properly belonging one branch shall exercise to another except provided expressly

branch as in the constitution. 19 1963, 6, provides: § Const art 1 judicial power exclusively The of the state is vested in one court justice court, supreme which shall be divided into one one court appeals, general jurisdiction one trial court of known as the court, probate court, jurisdiction circuit one and courts of limited legislature may

that the establish two-thirds vote of the serving members elected to and in each house. 20 1964, 6, provides: § Const art 4 supreme general superintending The court shall have control courts; power issue, prerogative over all hear and determine writs; jurisdiction appellate provided by

remedial as rules of supreme supreme power court. The court shall not have judge. remove a 6, provides: § Const art supreme by general establish, modify, court shall rules simplify practice procedure amend and in all courts of this equity shall, proceedings state. The distinctions between law and practicable, chancery as far as be abolished. The officeof master in prohibited. v Ford Motor Co Opinion of the Court powers and other administrative as well as traditional adjudicative “They ones.” Id. at 663. have been exclu- sively judiciary by entrusted to the the Constitution and diminished, not exercised nor interfered with may by, be by government the other branches of without constitu- Id., citing Attorney tional authorization.” General ex rel (1937). O’Neill, 649; Mich Cook v 280 275 NW 445 Moreover, a express authority complaint dismiss by conferred in Michigan. statute and court rule MCL 600.611 provides jurisdiction “[c]ircuit courts have make power proper fully order effectuate the circuit jurisdiction judgments.” courts’ Addi- 2.504(B)(1) tionally, provides MCR the plain- “[i]f tiff comply fails to with rules or a [the court] court order, a may defendant move for dismissal of an action or a claim against that defendant.” Michigan

Several of the Rules Professional Con- duct address attorney sanctionable conduct. MRPC 3.6 publicity. provides: concerns trial It lawyer extrajudicial A shall make an statement person a reasonable expect would to he disseminated if lawyer means communication knows or reasonably should know that will have a substantial materially prejudicing adjudicative likelihood pro- ceeding. [Emphasis added.] MRPC 3.5 addresses and decorum impartiality of the tribunal. It states: lawyer

A shall not: (a) juror, judge, prospective juror seek to or influence law, prohibited by other official means

(b) person parte concerning communicate ex with such a by law; pending except permitted matter as (c) engage undignified or discourteous conduct to- [Emphasis added.] ward the tribunal. Mich Opinion of the Court It

Finally, attorney MRPC 8.4 deals with misconduct. in relevant provides, part: lawyer professional It is misconduct for a to: (a) attempt violate or violate Rules of Professional Conduct, knowingly so, assist or to do induce another or do another; through the so acts of (b) engage dishonesty, fraud, involving conduct de- ceit, misrepresentation, law, or violation of the criminal adversely lawyer’s where such conduct reflects on the honesty, trustworthiness, lawyer; or fitness as a

(c) engage in prejudicial conduct that is to the adminis- justice. tration of

B. THE TRIAL COURT’S AUTHORITY TO DISMISS THIS CASE case, In Macdonald initially concluded that evidence of prior conviction inad- missible before the jury unduly because of its prejudi- cial abiding by nature. Rather than the trial court’s order, even after both the Court of Appeals and this Court denied leave to appeal regarding order, plaintiff and her counsel in engaged a concerted and wide-ranging in the campaign weeks before various scheduled trial dates to publicize the details of the inadmissible evidence through mass media and other They available means. continued to do so even after the trial explicitly court warned them that such misconduct would result in the dismissal of lawsuit.

The trial court has a gate-keeping obligation, when occurs, such impose misconduct sanctions that will only deter the misconduct but also serve as a deterrent to other litigants. 2.504(B)(1)

Moreover, MCL 600.611 and MCR pro- vide the trial court authority with the to impose sane- Maldonado v Ford Motor Co Opinion op the Court Here, tions such as dismissal. Judge Macdonald issued excluding an order regarding evidence ex- punged conviction. Judge Giovan later reaffirmed Judge exclusion, Macdonald’s initial order of and explic- itly parties warned the that he if would dismiss the case inappropriate remarks the excluded regarding con- viction continued.22 Cavanagh Judge Both Justice and Justice Weaver claim that Giovan’s

n warning engaging pretrial publicity to refrain from not an order so, doing they rely Judge the court. In on Giovan’s statement that he gag however, dissenting justices, “never issued a order” in this case. The Judge clearly explained take this statement out of context. Giovan that a gag necessary already place govern order was not because rules were ing pretrial publicity: So, say, going gag what I I’m not to issue a order because the professional already rules of conduct have a standard that bind you. So, Giovan, why only should who is one of thousands

judges, people say select his own criteria for what should when we standing govern attorneys permitted have rules that what are say? things attorneys permitted And one of the are not to do is public to make statements that are intended to influence the your opponents outcome of a case. And when after several times coming accusing you your colleagues maybe to court parties doing that, precisely themselves of I took no action. day occur, long But after —on the this did I had seen a case, say many occasions, article about this I had heard counsel on you today, you as have said here have invited exami- case, nation of this all I said if I was that should find that the rules violated, action, were I would take corrective which could include dismissing the case. Now, referring mysterious, illusory, ambigu- I was not to some my nobody ous rule fixed in mind and known to else. It’s obvious saying that, going I was not that I was to take action or not based on a rule that I invented and disclosed to no one. anyone saying What was obvious to I that what was is that if I professional violated, found that the rule of conduct was that is to 476 Mich 372 Opinion of the Court order understanding Judge Plaintiffs Macdonald’s Judge warning and Giovan’s to adhere to the order was in her clearly deposition demonstrated the June 26, 2002, television interview that was broadcast on 4 in acknowledged Judge WDIV Channel which she warning that dismissal would if she Giovan’s result behavior, continued her further “it but stated that me, going doesn’t bother because I’m not to quit fight- ing against sexual harassment.”

Plaintiffs counsel clearly Judge also understood order and Judge explicit warning Macdonald’s Giovan’s to adhere to the order. The trial court twice explicitly the improper discussed conduct with counsel everyone warned about the of con- consequences tinuing Despite warning, misconduct. and despite trial, the approaching plaintiff and her counsel contin- fact, noted, ued the misconduct.23 In Judge as Giovan say parties making public or counsel were statements in- case, tended to affect the outcome of this would take action. Cavanagh suggests warning Justice Giovan’s not to press discuss the excluded conviction with the was somehow insufficient convey parties they to the were not to discuss the excluded strongly disagree. conviction with the media. Post at 410-412. We transcript exchange, pages of this which we have forth on set 382-383 of opinion, quite parties this makes it clear that the were advised in no uncertain terms that references to the excluded conviction were to cease. Contrary assertion, Judge Cavanagh’s explicitly to Justice Giovan warned parties attorneys and the that further references excluded Although Judge conviction would result in dismissal. Giovan did not embody order, warning warning in a written did not consist of “general passing parties.” comments... made in to both Post at 414. Rather, warning explicit open was and made on the record in court. clearly prohibited. require All involved were aware of what To appears Cavanagh formal written order—as it Justice would—would be to permit any litigant attorney disregard explicitly conveyed clearly obligation ground understood on the that it was not communi only gamesmanship cated a written order. Such a rule lead would adopt and we decline to it. v Ford Motor Co op the Court counsel, Washington George lead plaintiffs Massie, in television news broadcasts appeared Miranda expunged to Bennett’s convic- specifically referred Moreover, acknowledged that plaintiffs tion. counsel violating the possibly expungement counsel could be regard- information by publicly disseminating statute conviction, but stated that it ing expunged Bennett’s of note is Masley’s was “worth the risk.” Also Ms. 8, 2002, July hearing statement at the that “Ms. Mal- donado has a to about Mr. Bennett’s con- right speak for further plaintiff viction sure.” She stated counsel, trial, depending her on how close was had that had excluded right publicize evidence been by the court. that,

Judge noted properly notwithstanding Giovan rulings judges apparent illegality of two and the of conviction, excluded disclosing nothing Bennett’s would deter from continuing publicize information regarding excluded conviction. Plaintiff so in deposition. explicit admitted her Even without her from precluding plaintiff publi- order counsel conviction, cizing Judge Bennett’s excluded Giovan dismissing in case principled option chose justice. in order to the administration of protect imposition lesser sanction would have been unjust light flagrant and her counsel’s misbehavior.24 Judge explicit warning Plaintiff was well aware of Giovan’s to refrain making public and of

from references to the excluded conviction Moreover, consequences fading warning. as demon- to abide opinion, plaintiff warning throughout strated failed to abide on numerous occasions. suggests that the trial court had “numerous other Justice Cavanagh apart options” from available to it as sanctions dismissal. Post at 419. assertion, agreed determining it is irrelevant Even if we with this actually in this within whether the sanction chosen —dismissal case—was 476 Mich 372 Opinion of the Court only

Not did and her disregard counsel Judge Judge Macdonald’s order and explicit Giovan’s warning order, respect counsel violated numer- ous of professional rules conduct. Plaintiffs counsel’s public references to Bennett’s excluded conviction vio- 3.6, lated MRPC which was the basis for Giovan’s reasonably dismissal. Plaintiffs counsel knew should have known that their comments would have substan- tial materially prejudicing likelihood of the proceedings by improperly influencing prospective jurors regarding propensities to commit harassment, sexual especially since trial was approximately two weeks away.

Plaintiff argues Judge improperly Giovan relied on MRPC 3.6 in dismissing plaintiffs case. con- She that Judge tends solely Giovan’s dismissal was based on plaintiffs comments, and that MRPC 3.6 does not apply to nonlawyers. Plaintiff correctly argues that the Michi- gan Rules of Professional Conduct do not apply nonlawyers, mistakenly but Judge contends that Gio- van only relied on her in ordering behavior a dismissal. Plaintiff erroneously also contends that she free engage in improper pretrial publicity designed to taint the potential jury pool. The Michigan Court Rules do apply to plaintiff. They authorize the trial court impose sanctions such as party dismissal for miscon- 2.504(B)(1). duct. MCR Judge expressly Giovan warned if plaintiff that she continued to disseminate informa- range Babcock, principled supra outcome[s].” “reasonable and at light repeated 269. In of violation of the court’s instruction not to publicize conviction, say Judge the excluded we cannot Giovan’s nothing conclusion that short of dismissal would deter and her repeated such, counsel’s misconduct was incorrect. As even if we were to assume that there were other sanctions available —which we do not necessarily clearly believe to be the case—the sanction of dismissal was range within the of reasonableness under the circumstances. v Ford Motor Co Opinion of the Court regarding tion Bennett’s excluded conviction viola- order, Judge tion of Macdonald’s he would dismiss her and, thus, obey warning case. Plaintiff failed to her In Judge properly Giovan dismissed case.25 event, 3.6, if plaintiff even is not bound MRPC counsel’s references to Ben- repeated conviction, excluded with Ms. coupled nett’s Massie’s trial days statement five before that “Metro Detroit” judges Company, were biased favor of the Ford Motor substantially likely materially were prejudice proceedings improperly ju- influence prospective rors. did not reach a

Judge regarding Giovan conclusion possible 3.5, violation of MRPC finding unnecessary because he the case under dismissed MRPC 3.6. Because did not on this rule in rely dismissing Giovan case, regarding we need not reach a conclusion a possible violation of the rule. enumerate plain- We nevertheless tiffs counsel’s of disrespect against acts the trial court to highlight plaintiff’s counsel’s undignified discourte- ous conduct trial toward the court. counsel, occasions,

Plaintiffs on numerous despite explicit court, court orders and an the trial warning publicly divulged regarding information ex- Bennett’s cluded conviction. Plaintiffs counsel also deliberately disregarded the trial oral court’s directive to refrain from attempt portray Judge Justice contends that we Mac Cavanagh excluding prior having order donald’s Bennett’s conviction as the same precluding any We, public. effect as order mention of this evidence in however, precluding do not misconstrue the order of exclusion as an order Rather, public. rely mention of the evidence in we on the order of concluding exclusion in and her counsel’s numerous just begin references to the excluded evidence weeks before trial towas premeditated designed potential jury constituted misconduct to taint the pool, deny trial, defendants a fair and frustrate the due administration of justice. 476 MICH372

Opinion op the Court disseminating regarding information Bennett’s excluded Masley sarcastically to the trial responded conviction. Ms. hearing, court’s at the dismissal and at one questioning stand, while on the turned to members of the point, in “Justice for Justine” committee the courtroom present they judicial and asked them who voted for in the last Additionally, election. Ms. Massie commented during 3, 2002, July television interview that “Metro Detroit” judges are biased toward the Company. Ford Motor While may 3.5, this conduct not amount to a violation MRPC justifies Judge it further Giovan’s dismissal for and her counsel’s in participation pretrial publicity de- signed jury to taint the pool. 8.4,

We note although Judge also MRPC did Giovan rely on this rule in ordering dismissal. 8.4 MRPC prohibits lawyers from in engaging conduct prejudicial to the justice. administration MRPC 8.4(a) prohibits lawyers from engaging misconduct through Here, acts of others. plaintiffs counsel not only failed to restrain plaintiff repeatedly from intentionally publicizing inadmissible ex- punged conviction order to the potential jury taint pool and deny trial, they defendants a fair participated with in the misconduct on numerous occasions. This inappropriate unprofessional conduct directly Judge order, violated Macdonald’s Giovan’s reaf- order, firmance of the and Judge explicit Giovan’s warning. Moreover, directly this conduct was aimed at frustrating the due justice. administration of It also supports dismissal of plaintiffs complaint. C. THE FIRST A AMENDMENT AND TRIAL COURT’S ABILITY TO RESTRICT SPEECH guarantees First Amendment that the freedom shall not be speech abridged. It states: v Ford Motor Co 399 Opinion of the Court respecting an Congressshall make no law establishment of thereof; abridging religion, prohibiting or the free exercise or press; right speech, the freedom of or of the or the of the assemble, petition the peoplepeaceablyto and to Government Const, grievances. [US Am I.] for a redress of Gentile, In Supreme the United States Court ad- the the governing ability dressed standard state’s attorney under an ethical rule that discipline respects 3.6, regard- identical in all relevant to MRPC ing speech parties proceedings about in which an attorney rejected petitioner is involved. The Court he attorney’s claim that should be held to the “clear and present danger” applicable press, standard to the speech lawyers concluded that “the representing may clients in cases pending regulated be under a less standard than that demanding regula- established for Gentile, Court, tion of the in press.” supra at 1074. The an opinion by Chief Justice Rehnquist, explained: majority agree

We with the of the States prejudice” “substantial likelihood of material standard constitutionally permissible constitutes a balance between attorneys rights pending the First Amendment in cases and the in State’s interest fair trials. regulation implicates

When a state First Amendment rights, against the Court must balance those interests legitimate activity in regulating State’s interest in question. The “substantial likelihood” test... is constitu- designed protect integrity tional ... for it is judicial system only imposes fairness of a state’s and it necessary lawyers’ speech. narrow and limitations on (1) principal limitations are aimed at two evils: comments likely trial, that are to influence the actual outcome of the (2) venire, likely prejudice jury comments that are panel ultimately [Id. even an untainted can be at if found. added).] (emphasis “[ljawyers representing The Court noted that clients key are in the criminal pending participants cases Mich 372 Opinion of the Court demand some adher- system, may and the State justice their system regulating ence to the of that precepts their conduct.” Id. at 1074. The Court as well as speech “[flew, any, if interests under the further observed right are more fundamental than the to a Constitution and an outcome affected by ‘impartial’ jurors, fair trial statements would violate that funda- extrajudicial right.” mental Id. at 1075. Gentile, Giovan, reviewing after found a sub-

Judge likelihood of prejudice: stantial however, important, More is that the should not argument, goes heard to make her like this: “We be which deny that our behavior was intended have a substantial prejudice. you likelihood of But even if establish that was, you plaintiffs you cannot dismiss case until establish that it has achieved its intended effect.” acceptable

We believe otherwise. That is not an stan- preserving integrity system. dard for of a court intentional, question premeditated, in has been behavior intransigent. designed and It was to reach the farthest public pre- boundaries of the consciousness. It should be had intended sumed have its effect. Appeals acknowledged

The Court of the appli- under gener- cable test Gentile is whether the conduct prejudice, yet ated a “substantial likelihood” of re- manded for an evidentiary hearing to determine prejudice whether “actual” occurred. affirm the hereby understanding

We trial court’s and public Gentile. Plaintiffs her counsel’s numerous inadmissible, expunged references inde- conviction, cent exposure despite court order exclud- ing evidence, obviously such were intended to prejudice potential jurors. The trial court thus warned the parties public expunged and counsel that all references to the of the ethical would conviction violation rules result Ford Motor Co v Court This limitation on and her dismissal. only speech that was speech applied counsel’s sub- likely materially prejudicial to have a effect stantially therefore, that, and violated the rules of ethics. It did speaking and her counsel from prohibit plaintiff general sexual harassment or the nature of about Giovan, hearing, case. at the dismissal the First acknowledged importance upholding Amendment protected and drew distinction between merely designed judi- to thwart speech speech cial He stated to defense counsel: process.

Well, further, now, you before we move think under- party’s stand that we need to draw a distinction between a willingness right to disseminate to the their like, they’ve unjustly ideas of how been treated and the really opposed even criticism of the Court as to what’s at here, judicial system, stake and that is efforts to the thwart disseminate, example, and that is to for excluded evidence by statute, and forbidden to be evidence disseminated you nevertheless, you which have referred to. But do need things. to differentiate those between two The rules of evidence are to designed ensure fairness in the justice, unjustifiable administration of eliminate expense delay, promote growth and devel- opment Judge of the law of evidence. MRE 102. Mac- expunged donald’s exclusion Bennett’s conviction specifically was based on the rules evidence. She 404(b) evidence, relied on MRE in excluding deter- that the mining evidence would be offered for other than to show Bennett’s to purpose propensity in Judge conduct himself this manner. Macdonald fur- that, if ther relied on MRE 403 determine even relevant, prejudice evidence were its undue substan- light value in of the tially outweighed probative its availability proof. Judge of alternative means of Mac- ruling, subsequent donald’s Giovan’s limita- 402 Mich 372 Court tion on and her counsel’s was in speech, purpose evidentiary accord with the of the rules. Moreover, the rulings necessary protect were de- right fundamental to a fair trial and were fendants’ directly protecting potential jurors aimed at from prejudice.

As the United in Supreme States Court noted case, few, if any, Gentile interests are more fundamen- right tal than the to a fair trial impartial jury. Plaintiff stated that nothing would deter her from continuing publicize convic- expunged tion, post and that she would it on if the Internet she Additionally, counsel, could. despite court orders, publicly divulged regarding information expunged excluded conviction. Judge merely Giovan “ exercised his ‘affirmative duty’ constitutional potential minimize the for prejudicial pretrial public- ity,” v Houbriti, United States F 2d Supp (ED Mich, 2004), Co, quoting Gannett Inc v DePas- quale, 368, 378; 2898; 443 US 99 Ct L S 61 Ed 2d 608 (1979), in dismissing plaintiffs case, and did not violate the First Amendment in doing so.

The Court of Appeals requirement that actual preju- dice be shown not only conflicts with the “substantial Gentile, likelihood” test set forth but also with the plain language Moreover, of MRPC 3.6. the Court of Appeals practical standard has no workability. It would impossible be to determine prejudice” “actual to a potential jury pool years three after the incident question. We decline to order an evidentiary hearing is no more than a fool’s errand. The trial court narrowly tailored a restriction on and her plaintiffs counsel’s speech Michigan consonant with the Rules of Professional Conduct. The trial court’s limitation on plaintiffs and her speech counsel’s tai- narrowly v Ford Motor Co the of Court poten- to the necessary prejudice to prevent lored and the First Amendment. and did not violate jury pool tial CAVANAGH’S DISSENT RESPONSE TO JUSTICE IV majority opinion that the asserts Justice CAVANAGH restricting speech Amendment the First violates mate likelihood of that does not have substantial reiterate that proceedings. We rially prejudicing on necessary plaintiffs and limitation the narrow to Bennett’s speech only applied and her counsel’s that had been excluded as prior conviction expunged free to Plaintiff and her counsel remained evidence. and nature of her case sexual general discuss that the agree with Justice CAVANAGH harassment. We protect expres First Amendment does even offensive Paul, 377; sions, see, e.g., City R A V v St 505 US of (1992). 2538; 120 L Ed 2d 305 The First S Ct Amendment, however, all protect speech does Florida, See, e.g., v Adderley whatever circumstances. (1966). 39; 242; L Ed 2d 149 385 US 87 S Ct recognized United Court has Supreme States attorneys rights litigants need balance and the interest in fair trials. pending cases state’s tension, recognizing In the Court has held that does not protect speech the First Amendment materially prejudicing likelihood of has substantial im CAVANAGH’s proceedings. Contrary Justice being being for plication punished court, af discourteous and offensive toward we solely because firm the dismissal case made numerous ref counsel evidence, the trial court’s despite erences to excluded would result if such warning oral that dismissal continued, tainting for the sole purpose references a fair denying defendants the-potential jury pool trial.

404 372 Mich Opinion of the Court opines

Justice CAVANAGH her counsel’s references to the excluded evidence did not have a substantial likelihood of materially prejudicing We, proceedings. however, the fail to see how and her counsel’s public numerous references to Ben- prior exposure conviction, nett’s indecent after the evidence, court ordered the exclusion of that did not have a materially substantial likelihood of prejudicing proceeding. this sexual harassment The excluded inde- cent exposure conviction, which subsequently ex- punged, involved sexual behavior that is very similar to the alleged sexual behavior in this case. It could be offered for no other than purpose to show Bennett’s propensity to conduct himself in this manner. This is 404(b) type the exact of evidence that MRE precludes. If the narrow limitation on speech this case cannot pass muster under the Gentile, substantial likelihood test of we fail to see what limitation could survive.26

V CONCLUSION We conclude that the trial court did not abuse its discretion in dismissing plaintiffs suit. We further hold reiterate, To Fieger, as stated in Grievance Administrator v 476 Mich (2006): 34; n 264-265 719 NW2d 123 position by dissenting justices , Given the advanced . .. dissenting justices one wonders whether simply would legal process surrender to the least restrained and worst increasingly behaved members of the bar. With little need to necessary public adhere to the rules to ensure confidence in the integrity legal process, of the the dissenters would create a legal questions increasingly decided,

world in which come to be by truth, not a fair and bullying rational search for but behavior, personal abuse, one-upmanship, uncivil part exhibitionism on the of those who are custodians of this system, the bar. Justice under the law cannot flourish within system. such a v Ford Motor Co Dissenting Cavanagh, warning prohibiting explicit the trial court’s did not excluded conviction references to Bennett’s Accordingly, we reverse the First Amendment. violate and reinstate Appeals of the Court judgment case. Because dismissing plaintiffs order trial court’s we need appropriate, hold that a dismissal we do not Additionally, issue. we remaining decide the because cross-application in plaintiffs reach issues of the trial light are moot in of our reinstatement they order of dismissal. court’s Young concurred

Taylor, C.J., JJ., MarkmaN, Corrigan, J. with majority I (dissenting). agree with

CAVANAGH, authority has the to control courtroom that a trial court with however, comport this control must proceedings; an “preserving Amendment. The desire for the First 375, ante at cannot be éxercised at organized polity,” right Amendment of an individual’s First expense I believe that the trial court speech. free Because case when it dismissed abused its discretion disagree I with vehemently and because prejudice with today does not majority’s opinion belief its Constitution, I must dissent. respectfully violate the that the Further, agree I with Justice WEAVER because of our majority’s decision undermines basic tenets concur with her dissent. judicial system, also THE FOR REVIEWING THE CONDUCT I. STANDARDS AND HER ATTORNEYS OF PLAINTIFF of action for Plaintiff Justine Maldonado’s cause Bennett and defen- against Daniel sexual harassment preju- dismissed with Company dant Ford Motor 2002, trial court 21, because the believed August dice on attorneys prejudicial engaged and her 406 Mich 372 Dissenting Opinion by Cavanagh, J.

pretrial publicity. Michigan of Rules Professional (MRPC) Conduct an have established court rule that specifically governs publicity. trial MRPC 3.6 states: lawyer extrajudicial

A shall not make an statement person expect a reasonable would to be disseminated lawyer means of communication if the knows or reasonably should know that it will have a substantial materially likelihood prejudicing adjudicative pro- ceeding. [Emphasis added.] The United examined Supreme States Court “substantial prejudice” likelihood of material standard Nevada, Gentile v State Bar 1030; 501 US 111 S Ct 2720; 115 L Ed (1991), 2d 888 in light of the First Amendment.1 The Supreme Court observed that standard “imposes only narrow and necessary limita- lawyers’ tions on speech.” Id. at Supreme 1075. As the noted, Court has likelihood, also “the great, however that a substantive evil will result cannot alone justify a upon restriction speech freedom of press.” v Bridges California, 262; 190; US 62 S Ct (1941). L Ed 192 The evil must be substantial and “extremely serious and the degree imminence ex- tremely high before can punished.” utterances be Id. at 263. provides: The United States Constitution Congress respecting shall make no law an establishment of religion, prohibiting thereof; or abridging the free exercise speech, press; right freedom of people or of the or the of the

peaceably assemble, petition government and to for a grievances. Const, [US redress Am I.] Michigan provides: Constitution Every person may freely speak, write, express publish his subjects, being responsible right; views on all for the abuse of such abridge and no liberty law shall be enacted to restrain or speech press. 1, [Const § or of the 5.] art Ford Motor Co v Dissenting Cavanagh, AND HER ATTORNEYS OF PLAINTIFF II. THE CONDUCT TO MATERIALLY LIKELY NOT SUBSTANTIALLY WAS THE TRIAL PREJUDICE was not attorneys and her of plaintiff The conduct the trial. materially likely prejudice substantially cause of harassment filed her sexual plaintiff When an article about published Free Press action, the Detroit press also held a 9, 2000. Plaintiff on June filing From filing complaint. of her about conference conviction forward, exposure indecent Bennett’s time record, any member available public a matter of was including any journalist. public, of the exposure indecent conviction Long before 9, 2001, and the on ultimately expunged November was parties to the general statement trial court made 21, 2002, the indecent on June pretrial publicity about it surrounding facts were conviction and the exposure to blame Accordingly, improper it is well-publicized. men- every subsequent for attorneys and her conviction, as the indecent exposure tion of Bennett’s information his conviction majority has, because about had Journalists available from numerous sources. was complaint the time the access to this information from filed, attended courtroom journalists was reports to do. Police they as are allowed proceedings, re- anyone properly readily were available who plead- contained in them. This information was quested court, and this ings Appeals, in the circuit the Court Further, the inde- Court, was made. objection and no repeatedly was discussed exposure cent conviction of whether open regardless court. So information, jour- of the novice original provider would a nominal amount of research willing nalist to do See, e.g., the conviction. ultimately discovered have J.) (Although the Gentile, (Kennedy, at 1046 supra journalists, the information with shared petitioner 476 Mich Dissenting by Cavanagh, J. journalist was also “available to any willing to do a little work.”). of investigative bit Over seven months after information about Ben- nett’s indecent exposure conviction was first made case, known in relation to 19, on January 2001, granted Kathleen Macdonald a motion to exclude evidence of exposure indecent conviction Later, from trial.2 on February 2001, the trial granted court a motion to exclude evidence related to Bennett’s indecent exposure conviction. However, these decisions did preclude plaintiff and her attorneys ever mentioning the indecent expo- from sure conviction in public again, and it is erroneous to attempt portray them as such. majority While the refers to order Judge Macdonald that witnesses who mentioned Bennett’s indecent exposure conviction would be considered in contempt court, this order applied case, Lula Elezovic’s not plaintiffs case, and the order applied only to testimony given in court. This order did not restrict plaintiff’s right to discuss Ben- nett’s indecent exposure conviction in public settings as it relates to her case.

Notably, in between the two decisions excluding evidence of Bennett’s exposure indecent conviction, on 2 Notably, Judge recognized may Macdonald that this decision not be following: final. She stated the My ruling right [evidence now is that it of Bennett’s indecent

exposure conviction] will not be allowed even as to notice to Ford myposition However, Motor. That’s now. ruling I whenever make a trial, in a vacuum outside the always context of a I’m concerned get that when I may the middle of the trial and I find out I have mistake, change my made a ruling. I probative will If I find the against only value this evidence Ford Motor and somehow can jury make a limited instruction so that somehow the won’t take it propensity evidence, as right I would reconsider it. As now this [Emphasis evidence is excluded. added.] y Motor Co Ford Dissenting Opinion Cavanagh, J. published York Times the New January 28, 2001, of sexual multiple the claims lengthy article about The article also men- plant. at defendant’s harassment conviction, includ- exposure indecent tioned Bennett’s conviction exposure the indecent ing a reference to defendant’s manager former for by plant made the on June published Another article was plant. Wixom 12, article, In is plaintiff in the Metro-Times. the everything in “They investigating are saying, as quoted me, man the man did it to not the my life, but not who record, company was in a car had the criminal who girls and was convicted high-school himself to exposed However, “[according that of it.” the article also stated attorney,” plaintiff began weav- to Ford and Bennett’s learned of Bennett’s indecent ing her tale after she attorney also talked conviction.3 Bennett’s exposure conviction in the exposure Bennett’s indecent about article, falsely Bennett was accused as well as how expunged. Ben- and how the conviction was girls attorney mentioned for conviction was also nett’s alleged that Bennett Elezovic, Lula a woman who also Perez, another woman her; Pamela sexually harassed her; harassed alleged sexually that Bennett who majority for defendant. While plant manager former necessary responses majority these remarks as characterizes attorneys. by plaintiff n 11. The and her Ante at 382-383 comments made lying opportunist majority saying is a who believes exposure story learning is of the indecent conviction crafted her after jury pool prejudice potential and cause “not intended to taint 11.1, however, objective reader of plaintiff.” believe that an Ante at 383 n analytical disparity recognize in the facts of this case will exposure reasoning. Simply, mentioning majority’s if Bennett’s indecent attempt jury majority influence the asserts —an is—as the conviction arguing of sexual pool, publicly fabricated claims then large desperate attempt cash from to receive a award harassment in a majority exactly type that the so the same conduct defendant finds egregious. 476 Mich 372 Dissenting Opinion by Cavanagh, proper that it was for trial court to

contends dismiss prejudice mentioning for case with conviction, conveniently ignores indecent exposure the fact that attorney Bennett’s attor- defendant’s ney theory also did the same to advance their of the case to the public. May 17, 2002,

On evidentiary hearing another was held in front At a William Giovan.4 conference chambers, attorney requested gag defendant’s attorneys order directing publicize Bennett’s expunged indecent conviction. The exposure court to issue a gag declined order.

In evidentiary the course another hearing on June 21, 2002, the trial court briefly stated that it would if dismiss the it found party “causing case that a some our difficulty getting jury a fair ....” Yet this “explicit warning,” as the majority repeatedly it, calls vague fleeting was so possibly that it cannot take the place of a formal court It provided order. no guid- ance to the parties about what conduct was prohibited and clearly no specific made mention of Bennett’s expunged Moreover, conviction. because the conviction had been previously referenced in the media and the trial court had to issue a order to gag prohibit refused conduct, this can be there no fair inference drawn from the trial court’s offhand that it comment was now prohibiting mention of the conviction.

It is important note that the exchange entire about possibility dismissal occurred an offhand manner as follows: Morgan

Mr. first, [Bennett’s counsel]: But they tried Mr. they unilaterally deposition, scheduled it for 4 Judge assigned Giovan to the case after Kathleen Mac assigned donald was to another division circuit of the court. Motor Co v Ford Dissenting Cavanagh, J. they Metro Times with 12th, had fed the knowing that one-sided, horribly inflamma- for that all the information tory article that came out— ^[5] one-sided? You think it was

The Court: me to anyone heard comment Morgan: I haven’t Mr. and a half. contrary past in the week you I don’t know who just tell I will The Court: presenta- it made a fair was, somebody thought that but there, you feel if makes nor neither here tion. That’s any better. before, my client was Well, night Morgan:

Mr. had case. We deposition in the Perez ready appear for the we had scheduled protective order that a motion for a filed Friday, protective for a and that motion previous for the one, judge limit— was, to have number order know, you But, you mentioned since The Court: thought that there is article, coming from? I where’s making public against speaking counsel prohibition to— litigation. designed to affect statements certainly is. counsel]: There Hardy Ms. [defendant’s from inten- prohibits counsel an ethics rule which There’s jury by making trying pool tionally to taint evidence, exactly been what’s excluded which aware of time. occurring quite for some being quoted in this? counsel The Court: Is I counsel on counsel]: think Washington [plaintiff’s Mr. not, Morgan and Ms. Massie Mr. Ford was but both sides. quoted. all attorney] quoted, both and were [plaintiffs I’m not sure—well— The Court: states as follows: of this “one-sided” article Part colluding pick pockets. Ford’s And Perhaps plaintiffs are to the portrays her to be—a Ford perhaps Maldonado is the woman ringleader wanton, emotionally of a sexually troubled greedy, company. conspiracy gouge the telling the truth. perhaps are she and the other women Or 476 Mich 372 Dissenting Opinion by Cavanagh, initiated, doubt, Hardy: It without and Mr. Ms. this, by Washington, Washington dispute will not Mr. as all office, press the has been initiated his the constant issue, publicity really is one the issue but serious is the Washington press Mr. the effort make sure that report concerning continues evidence information way, somehow, expunged conviction so that some ruling— irrespective of this Court’s making any this, Court: I’m decisions about hut you going thing. I’m to tell If I one ever reach the somebody violating obliga- conclusion that is that ethical difficulty causing jury, tion getting some our fair I or, say, the prejudice, will dismiss case with and I on should side, just grant judgment. the other a default want everyone to know that. And then counsel whatever can [Emphasis involved answer to their client. added.] Contrary to majority’s assertions, the trial the court did not advise the “in parties no uncertain terms that references to the excluded conviction were cease.” n Ante at 394 23. And the trial court “explicitly did not parties attorneys and the warn[] that further refer- ences to the excluded conviction would result in dis- fact, In missal.” Id. there was no “explicit warning” that the case would be dismissed if remarks about the made, conviction were and there warning was no about what conduct would result dismissal. A review of the quoted transcript of the exchange that not reveals once does trial court even utter a word about the ex- punged exposure indecent conviction or excluded evi- dence.

Remarkably, I only quote need the trial court’s own words falsity majority’s to show position that the trial court warned “explicitly parties that [it] would dismiss the case if the inappropriate remarks regarding excluded conviction continued.” Ante at stated, 393. The trial court “I everybody itself told then May hearing], certainly [at the in chambers and Motor Co v Ford Dissenting Cavanagh, J. that record, I don’t know the that on again after maybe no intention record, that I had the I it on repeated added.) At say.” (Emphasis can they what telling anyone I don’t stated, “I think court the trial hearing, another can lawyer what myself to decide for right the have finally And right.” that I do not have public. the say to such an “I never issued have importantly, most how the Therefore, I fail to see my in life.” order words as the trial court’s characterize majority can trial court itself the warning” an when being “explicit warning. such a not it issued does believe it did not issue that court’s own statements The trial what that restricted warning explicitly an order reader that a reasonable persuade could be said should warning issued entered or no such order was con- exposure indecent the mention of the prohibited in reality majority ignore the chooses viction. Yet and that it it created of a factual scenario favor attempts portray majority had wishes occurred. having the from trial as excluding order evidence mention of this any order precluding effect as an same is the portrayal erroneous and this public, evidence majori- Remarkably, majority’s analysis. of the crux that two faulty premise on the analysis entire relies ty’s dealing of which was never even orders —one entered — conduct restricting different topics different with excluding But an order actually be same. can into an order magically transformed evidence is not no mention of the evidence precluding it were so. wishes majority much matter how stead- majority has Unfortunately, believe acknowledge the difference because fastly refused to insupportable. analysis that its is would show the dis- majority “preposterous” labels as While from a excluding evidence that an order position sent’s 476 Mich Dissenting Opinion by Cavanagh, trial the same as an order precluding the mention of this evidence in public, the majority goes never beyond name-calling to explain position its that an order excluding evidence now means that this evidence can never be mentioned in again. forum Unfortu- nately, the majority’s insistence on resorting to such tactics and its explain refusal to position its is becoming standard operating procedure whenever the majority cannot legally support its position. case, In this the majority so desires a specific outcome that it ignores the fact that an order excluding evidence cannot be labeled an order precluding mention of this evidence in public, and this blind adherence to its favored outcome leads to espouse position that is completely indefensible.

Moreover, the trial court’s brief remarks at the evidentiary hearing about ethical obligations were made with no hearing or information about plain- what tiff and her attorneys had or had not doing. been There nois indication that the trial court believed that plain- tiff and her attorneys had been engaging in misconduct they that must now cease of their activities. The trial general court’s comments were made in pass- ing to both parties. There was no formal informal on hearing matter-, there only was an extremely brief exchange. Also, contrary to the majority’s conten- tion, a comment by plaintiff made at a rally protesting sexual harassment adequate is not evidence that plain- tiff understood the trial 21, court’s June “order.” In response to a reporter’s question at rally, plaintiff stated that she going was not quit to fighting sexual harassment, even if that meant that her case would be dismissed. However, the report news does not show the question posed by the reporter that prompted plaintiffs statement. Notably, there was no mention of Bennett’s expunged conviction during this news broadcast. What was mentioned during the broadcast awas statement Ford Motor Co v Opinion by Dissenting Cavanagh, J. defendant, in which she said for spokeswoman case, she did comment on the but that she would not had asked those involved judge note that to the case. While the drawing attention refrain from the conclusion from broadcast majority draws limitation on understood a that somehow conviction when no referencing expunged Bennett’s by the ordered or discussed such limitation was ever It court, highly no conclusion. trial draw such referring to the same was probable spokeswoman defendant’s directive judge parties trial asked the referencing —that attention to drawing unnecessary refrain from a vague no indication that such case. But there is into an “order” transformed was somehow “request” conviction regarding referring expunged comment.6 merely plaintiffs attorneys, the conduct of As it relates to that it was misconduct for majority states in television news broad- attorneys “appeared have Bennett’s expunged referred to specifically casts Yet, in over ten televised news conviction.” Ante at 395. do not once mention plaintiff attorneys and her reports, conviction or the events exposure Bennett’s indecent Notably, only person that led to conviction. in one of the on the conviction comment off-camera Further, for spokesperson is a reports news defendant. referenced in various the 1995 conviction is while for Bennett or attorney an reports, televised news If it was reports. in each one of these appears defendant 6 sought specificity argued more Plaintiffs counsel later even vague provide any guidance request because too the trial court’s legal way [plaintiffs] team could know “there’s no member said, running conclusion, you you as that we were had drawn when of the ethical rules afoul Mich Dissenting Cavanagh,

misconduct for plaintiffs attorneys to appear in these reports, why fail to see defendant is not being held to a similar standard. that,

I further note September 12, 2001, in a article by The Press, Associated it is Bennett’s attorney who mentions the indecent exposure conviction, not plain- tiffs attorneys. In an 10, 2001, October article in the Press, Detroit Free again is attorney Bennett’s who mentions the indecent exposure conviction as he char- acterizes and the other women who allege sexual harassment Bennett as women who are lying, looking jobs, for easier “out to a quick buck,” make attempting to on capitalize Bennett’s indecent exposure conviction.

Notably, “in some press circumstances comment is necessary protect the rights of the client and prevent abuse of the courts.” Gentile, at supra 1058 (Kennedy, J.). attorney “[A]n may take steps reasonable to defend a client’s reputation----” Id. at 1043. In case, defendant made numerous comments to the media regarding plaintiff and her claims of sexual harassment. Bennett’s and strategy defendant’s was clear. Plaintiff was a liar. Bennett’s attorney repeated, made explicit statements plaintiff and the other media — women alleged who sexual harassment were lying. Defendant’s attorney stated had “credibil- ity issues.” In the 12, 2002, June article, Metro-Times attorney said that plaintiff and the other women suing defendant and Bennett were lying about the harassment and were motivated in large part by greed. Defendant’s defense was summarized being as that “Maldonado overweight opportunist who is colluding with co-workers to make a fortune by falsely accusing Bennett of sexual harassment and falsely accusing the company of doing nothing about it.” Pre- 417 Ford Motor Co Maldonado v Dissenting by Cavanagh, J. an as- included against allegations trial a car in defendant’s had in that she had sex sertion at underwear off took her frequently and lot parking see. And defendant’s it for all to hung and work testimony attempted trivialize attorney repeatedly sexually had been women that other and evidence this as “me too” referring to by by Bennett harassed evidence. contentious tactics the forceful and light

In the I do not believe by parties, both engaged of indecent conviction expunged mention of an mere had hear a substan- jurors might that some exposure See, the trial. materially prejudicing likelihood of tial (Statements by an made Gentile, supra at e.g., the department alleging police attorney not corrupt office were substan- were prosecutor’s proceedings.). likely materially prejudice tially would make this surprising It is not that defendant like as little attention as it would argument because it finds itself to this case because possible paid in- harassment claim yet another sexual defending however, surprising, Bennett. is is volving What agrees defendant and takes majority with is a reasonable prejudice that dismissal with position plaintiff for the courts in matter which response in a manner entirely her have behaved attorneys attorneys. of defendant’s consistent with the actions attorneys her are criticized for if Simply, perception of events seeking to influence conviction, exposure indecent talking about Bennett’s attorneys were then I fail to see how defendant’s parties sought Both to do the same. attempting in the adversary’s position their negatively portray trial court for is criticized media. While release, also sent out press out a defendant sending 476 Mich Dissenting Opinion by Cavanagh, press involving case, yet releases only plaintiff being who is penalized with the extreme sanction of dismissal with prejudice.7

The attention paid to this unmistakably case shows that public interest going be more acute when matter at issue is controversial. See Bridges, at supra 268. Sexual harassment, and, case, in this alleged its pervasiveness at facilities, defendant’s ais matter of public interest that will engender public discussion.8 As the Detroit Free Press reported in an 10, 2001, October article, various women complained of sexual harass- ment at plant, defendant’s Wixom including women high-level who were supervisors. article, In the a man- ager for the Michigan Department of Rights Civil “ stated, ‘It’s extraordinary situation you’ve when got that many [sexual harassment complaints].... Fil- ” a ing lawsuit is not something women take lightly.’

Making this case an bigger even issue of public interest is the manner in judicial which the proceedings are conducted, and allegation, supportable not, that participants are not receiving fair treatment in our courts. The public undoubtedly has an interest ensuring that proceedings are conducted fairly. But punishing comments made while the pending case is “produce will their restrictive results at the precise time 7 I investigating matter, also note that after Michigan’s the state of Attorney Grievance Commission did not find evidence of misconduct action, that warranted further complaints by it dismissed filed attorney against plaintiffs attorneys. 8 alleged Other women have also involving sexual harassment Daniel Notably, Bennett. opinions this Court has involving issued two other allegations against similar Co, Bennett. See Elezovic v Ford Motor 472 408; (2005); Mich Co, NW2d 851 McClements v Ford Motor 473 Mich (2005). 373; Further, majority NW2d 166 of this Court addressed deeding order alleged another case with sexual harassment Bennett. (2006). v Perez Ford Motor Co No 474 Mich 1057 Motor Co v Ford Dissenting Opinion by Cavanagh, would in the matters discussed interest public when at 268. It is supra naturally height.” Bridges, be at its rationale, cases majority’s axiomatic that under removed interest will be public that command the most may id. It take discourse. See from the arena case, majority’s position and the years to resolve negative critiques justice effectively silences this, Id. during that time. With parties and its system agree. cannot AVAILABLE

III. OTHER AVENUES WERE ADEQUATE THE TO TRIAL COURT options had other to use The trial court numerous dismissing employing the drastic measure before that other prejudice. possibility case with by the trial extreme measures could have been used less See, considered. weighty court is a factor that must be Communications, v Virginia, Landmark Inc e.g., (1978). 1535; L The 829, 843; 98 Ct 56 Ed 2d US S continuance; a moved required trial court could have trial; seques- of the continued forward with the location tered, dire; or continued forward individualized voir See, e.g., a of larger pool jurors. with voir dire and J.). least, At Gentile, (Kennedy, very at 1044 supra any forbidding could an order the trial court have issued of Bennett’s indecent by parties future disclosure any There is no record that exposure conviction. considered the trial options seriously were these court. argue plaintiff would majority appears sarcastic with such an order. But comply defense counsel that she comments to posturing and would con- about the conviction people

had told deemed from seriously do so cannot be evidence tinue to refuse plaintiff would extrapolated it can be which 476 Mich 372 Dissenting Cavanagh, comply Notably, with an order the court. it is from clear that the trial court never thought it issued an parties. order to of the The trial court stated: I gag gag don’t believe in orders. I’ve never issued a judges order.... I heard from time issuing have to time personal attorneys you saying orders to the can’t talk about case, this, you you can’t do can’t do that. I have never my issued such an order in life.... haven’t done it thirty years and I [Emphasis didn’t do it this case. added.]

Moreover, attorney defendant’s knew that an order During was not entered. a motion hearing, defendant’s attorney reiterated the court’s comment during prior hearing that were not “you issuing an order. . . .” During the same hearing, Bennett’s attorney also said that he had order, asked the court to issue an but the court had event, declined. And in any whether theoretically comply would with such an order is un- founded speculation. The critical fact is that is suffering the ultimate punishment for violating an alleged “order” that was never even issued. fully

To understand this case and any comments by plaintiff, made important to note during her deposition, plaintiff endured days At questioning. one point, attorneys her even filed a motion for protective order barring further deposition questioning plain- tiff. Plaintiff questioned about her weight her Internet habits. sought Evidence was and plaintiff was also questioned about her fantasies, sexual prior sexual assaults, habits, sexual and religious beliefs, as well as her drug brother’s addiction and her father’s criminal past. highly This case was contentious with defense repeatedly counsel claiming that plaintiff lying was so that she could receive a damages award. Plaintiffs statement of defiance to opposing counsel cannot rea- v Ford Motor Co Dissenting Opinion Cavanagh, sonably dispositive be deemed evidence that she would if to continue to discuss excluded evidence ordered not condone disrespectful do so the court. While do not of a during depositions during any aspect behavior human, a proceeding, plaintiffs response was albeit inadvisable, in response light pro- of the contentious a ceedings. But the statement did not rise to such level prejudice that her case should be dismissed with be- it, vehemently disagree made and I with the cause she majority doing range so was within the of reason- at the trial court’s discre- principled able and outcomes tion.

Remarkably, the trial court no real concern expressed ability jurors impartially to decide this about During hearing case. a to decide defendant’s motion to dismiss, listening the trial court stated was not determine if the arguments plaintiff conduct attorneys right her defendant’s to a fair trial. impaired stated, possible The trial court “I think it often know, with high publicity you appropriate cases to— a difficult safeguards, try may case without —it be publicity infecting sometimes —without trial.” attorney agreed gravamen Defendant’s that the of the proceeding “alleged about misbehavior” of attorneys publicizing and her material and it was not whether defendant could receive a fair trial. majority portray being now wants to this case as to a fair trial. See ante at 376. right about defendant’s “trial limitation on the speech It claims that the court’s necessary and her a narrow and counsel was from protecting potential jurors limitation aimed at at But I fail to see how prejudice.” necessary Ante 377. even it was when the trial court itself did not consider dismissing prejudice. for the case with this as reason this case as majority portray While the now wants 476 Mich 372 Dissenting by Opinion Cavanagh, J. being right about defendant’s to a fair trial because portrayal majority’s supports outcome, this better depiction disingenuous find to this be at best because neither the trial court nor defendant itself viewed the way. in case THE

IV CONDUCT OF PLAINTIFF AND HER ATTORNEYS DID NOT VIOLATE MRPC 3.5 AND MRPC 8.4 majority rely states that the trial court did not reaching on MRPC 3.5 MRPC 8.4 in its conclusion plaintiffs majority However, dismiss case. none- theless examines the conduct of and her attor- neys light provide in of these rules to further evidence the conduct warranted dismissal of sexual harassment cause action. MRPC 3.5 states the following: lawyer

A shall not: (a) juror, judge, juror, seek to influence a prospective or by prohibited by law; other official means (b) parte communicate ex person concerning with such a matter, pending except permitted by law; as (c) engage undignified in or discourteous conduct to- ward the tribunal.

Regarding majority 3.5, MRPC refers to a “sar- plaintiffs attorneys castic” comment made one of attorney the trial Further, court. also made a during comment a television interview that it was hard get for a a fair trial when the defendant ais large company Company. like Ford Motor com- This plaintiffs filing emergency ment stemmed from of an disqualification judge motion for of the representing because, trial part, a member of the firm defendant who appearances had entered in the matter for defendant reception chairperson “gala campaign for a v Ford Motor Co Dissenting Cavanagh, judge Opus for the at the fundraising event reception” failing get plain- After One Restaurant Detroit. who shared the invitation with attorney tiffs to disclose when, disqualify refused to judge her and the trial denying plaintiffs and then issued an order himself related excluding motion to dissolve the order evidence later, 21, August conviction. And on to Bennett’s 1995 case with the trial court dismissed and her because it claimed that prejudice publicity. had attorneys engaged prejudicial pretrial “There is no that critical of the question speech very of the lies at the center of power exercise State’s Gentile, the First Amendment.” at 1034 supra J.). (Kennedy, may “Whatever differences exist about Amendment, interpretations prac- of the First there is tically agreement major universal that a of that purpose Amendment protect gov- was to the free discussion of Alabama, 214, 218; ernmental affairs.” Mills v 384 US (1966). 1434; L 86 S Ct 16 Ed 2d 484 This includes “the manner in which government operated is or should be and all operated, relating political such matters to processes.” Gentile, Id. at 218-219. In at supra 1033- attorney the defendant was an held a press who conference that criticized the indicting state for his client and indicting members of the police depart- ment, who he referred to cops.” speech as “crooked This protected by was the First Amendment. Id. at 1058. People may disagree by about whether the comment plaintiffs attorney about the bias of “Metro Detroit” judges forthright, rude or crude or candid. unjustifiable. could be deemed statement even How- ever, attorney’s rights it was within the constitutional the “The that assumption respect make statement. for the can be won from judiciary by shielding judges the character of published wrongly appraises criticism 476 MICH372 Dissenting Cavanagh, at 270. The opinion.” Bridges, supra American public right speech gives of the to free is essence speaker’s view- speaker opportunity express Michigan valid or not. The citizens of are points, It intelligent speech and do not need to be sanitized. the justice system does not advance the ideals of comments, from may shelter the even those be deemed unwarranted some.

Moreover, nothing inherently undignified there is fact, criticizing discourteous in a court’s decisions. In a a judge expect critiques “judge should these as must subject expect public scrutiny.” be constant See 2(A). Conduct, Code of Judicial Canon But if an even attorney in a manner that deemed undigni- behaves discourteous, fied or then can imposed sanctions be against Indeed, every if attorney. attorney who had complained ruling about court’s his client’s case dismissed, the dockets of our state’s courts would be immediately. cleared almost opinion, majority At the outset of its expresses “preserving concern about an organized polity....” Ante at I dispute 375. And must note that do not certainly it would be easier a court for trial to handle proceedings if there were no fear of criticism for its However, rulings. the ease of a trial court in managing day-to-day its affairs is not to infringe sufficient on plaintiffs in rights First Amendment this case. Our right citizens’ constitutional speech free does not merely exist when it falls the majority’s within nar- rowly “orderly” parameters. defined The First Amend- ment exists to protect speech discourteous, disorderly, — downright and sometimes “Freedom” offensive. is the protected by first and foremost concern the First Amendment, not majority order. The has offered noth- than ing conjecture plaintiff more the actions of v Ford Motor Co Dissenting Cavanagh, would on impinge parties’ right trial, to a fair but the lack of any real concern about a fair particularly trial is obvious when one considers that the trial court did itself not have such a concern. majority The farther ignores that before speech can be punished, must be determined to have a substantial likelihood of materially prejudicing proceedings. See MRPC 3.6. Trial court proceedings are not protected by an restricting right individual’s criticize those very same proceedings.

Regarding 8.4, MRPC the rule the following: states professional lawyer

It is misconduct for a to: (a) attempt violate or to violate the Rules of Professional Conduct, knowingly so, assist or induce another to do or do through another; so the acts of (b) engage in involving dishonesty, fraud, conduct de- ceit, misrepresentation, law, or violation of the criminal where such adversely conduct lawyer’s reflects on the honesty, trustworthiness, lawyer; or fitness as a

(c) engage prejudicial in conduct that is to the adminis- justice; tration of

(d) imply ability state or improperly influence a government agency official; or or

(e) knowingly judge judicial assist a officer in conduct that is violation of the Code of Judicial Conduct or other law. majority states that counsel did not

restrain publicizing from Bennett’s indecent exposure conviction and that attorneys par- ticipated with in this “misconduct” on numer- ous occasions. The majority 8.4(a), refers to MRPC but I fail to see how plaintiffs attorneys engaged mis- conduct through plaintiff. the acts of There is no evidence that plaintiffs attorneys counseled her to speak about Bennett’s indecent exposure conviction. And I disagree that participating rally time- —a 476 Mich 372 Dissenting Opinion J. Weaver, to the country speaking

honored tradition —and media “misconduct” that warrants dismissal constitute prejudice. with case remanding that for an

Finally, majority states evidentiary hearing specifics about the of the conduct of and her is “no more than a fool’s attorneys engage errand” that it refuses to in. Ante at 402. While I the conduct of and her attor- disagree materially had a likelihood of neys prejudic- substantial trial, I fail to see what foolish remand- ing the is about when, ing to determine what specifically happened, why. person’s rights First Amendment are at When dismissing stake and the extreme sanction of a cause of ordered, prejudice majority’s action with has been light steadfast refusal to examine the facts in of the troubling say of events is timetable least. V CONCLUSION The Amendment merely pro- First does not exist genteel speech. tect courteous and The First Amend- ment be taken as a command of the “must broadest read in the of a scope explicit language, context liberty-loving society, will allow.” at Bridges, supra 263. Today, I the majority ignored believe has mandates of the Constitution in an ill-advised unnecessary attempt maintaining at “order” in our I courts. believe that the of plaintiff comments and her attorneys parameters fall well within the of the First Amendment. Accordingly, respectfully dissent and would affirm the decision of the Appeals. Court of JJ., J. Kelly, Cavanagh, concurred with

WEAVER (dissenting). majority’s J. assertion that WEAVER, today preserving “[a]t its decision the heart of Motor Co v Ford Dissenting Weaver, fully Ante at 375.1 concur false. is organized polity” that agree dissent because Justice CAVANAGH’s her case violated plaintiffs dismissal circuit court’s speech. to free right Amendment First violation, I write Amendment to the First In addition dis- circuit court’s of the premise that to explain and, validity legal no had case plaintiffs missal of its justify effort to acrobatic therefore, majority’s does not court’s order the circuit to affirm decision it. undermines organized polity, preserve and is by the law governed is polity An organized objectively the law and apply by courts preserved case, circuit court did In the facts. this state of plain- for its dismissal foundation legal establish a court’s a whim. The circuit case, it acted on tiffs Now, the of discretion. was, therefore, an abuse decision by order misstat- the circuit court’s legitimizes majority The the law. misapplying the case and the facts of ing review appellate this Court’s decision abuses majority’s therefore, preserva- with and, is inconsistent power polity. an ordered tion of preju- with in this case dismissed

The circuit court sexual harassment Maldonado’s dice Justine Company Ford Motor against action defendant The Daniel E Bennett. defendant employee, Ford’s pretrial publicity on its dismissal premised circuit court lawyers and it attributed to prior conviction to defendant that referred The circuit in an unrelated case. indecent exposure for Michigan violated the the publicity found that court Conduct, MRPC 3.6. The Rules of Professional Rules lawyers. the conduct govern Conduct Professional extrajudicial making lawyers from prohibits 3.6 MRPC materially prejudice might a case statements about that MRPC 3.6 the fact Despite judicial proceedings. Dissenting 476 Mich Weaver, [July- only to the applies lawyers conduct of and the fact that rule, there no evidence that her lawyers violated the the circuit court opined that Ms. Maldonado’s activities could be her imputed lawyers and dismissed the case. question presented is whether the circuit court’s dismissal prejudice with of Ms. Maldonado’s case was an abuse of discretion. I would hold that it was an abuse of the circuit court’s discretion to dismiss case for the below, reasons set forth and for those stated well Justice CAVANAGH in his dissent.

i majority Because the perti- mischaracterizes facts case, nent to understanding following time line lists the important dates and in events this case’s history:

(cid:127) 9, June 2000: Ms. Maldonado files her sexual harassment cause of action.

(cid:127) 9, June 2000: Detroit Free publishes Press article referring defendant Bennett’s unrelated inde- cent exposure case, conviction. The pending including statements about the sides, case both is regularly the media thereafter.

(cid:127) 19, January 2001: Judge Kathleen Macdonald grants the motion to exclude plaintiffs from trial evidence of defendant Bennett’s and prior unrelated indecent exposure conviction.

(cid:127) 16, February 2001: Judge Macdonald enters an order excluding from trial evidence of defen- dant prior Bennett’s and unrelated indecent exposure conviction.

(cid:127) 11, September 2001: lawyers Plaintiffs issue a press release referring to defendant prior Bennett’s and unrelated conviction for indecent exposure. Co v Ford Motor Opinion by Dissenting Weaver, J.

(cid:127) prior 2001: Defendant November expunged. indecent is exposure conviction for unrelated (cid:127) 21, During hearing regarding a June 2002: order to exclude Judge motion to dissolve Macdonald’s indecent expo- of the and unrelated expunged evidence conviction, Judge par- William Giovan warns sure if party and states that a pretrial publicity ties about could be obligation, some ethical case violates dismissed.1

(cid:127) 3,2002: a on motion July During hearing disqualification, Judge Giovan Judge for Giovan’s not a prior warning on the record that his was states order. court

(cid:127) During hearing 2002: on defendant’s August case, attorney defendant’s states motion to dismiss again. Judge case in the news Giovan prejudice. the case with dismisses

ii legal did not foundation The circuit court establish of Ms. Maldonado’s case. The support its dismissal Specifically, said: Giovan this, going making any I’m I’m decisions about but to tell somebody thing. you If I one ever reach the conclusion causing difficulty violating obligation some our that ethical or, jury, prejudice, I getting the case with a fair will dismiss side, judgment. say, grant a default should on the other incorrectly warning by suggesting majority characterizes this “Judge expressly if she continued to warned Giovan regarding Bennett’s excluded conviction disseminate information orders, Judge case.”Ante at Macdonald he would dismiss her violation of characterization, warning Contrary majority’s issued 396-397. to the parties by Judge simply to not violate ethical warned the Giovan only obligation. Judge evidence from order excluded the Macdonald’s trial, public forum. not the 476 Mich 372 by Dissenting Opinion Weaver, court based its dismissal of Ms. Maldonado’s on case her and her attorneys’ alleged violation Michigan of the Conduct, Rules Professional MRPC 3.6. The violation identified the circuit court involved pretrial publicity by Ms. attorneys Maldonado and her regarding defen- dant prior conviction for indecent exposure, Judge which suggested Giovan Judge violated Mac- donald’s order to exclude that evidence from trial.

The circuit court’s attempt to hold Ms. Maldonado responsible for a violation of MRPC 3.6 is unsupport- able. only MRPC 3.6 applies lawyers. The rule states: lawyer

A extrajudicial shall not make an statement person expect reasonable would to be disseminated means of if lawyer communication knows or reasonably should know that it will have a substantial materially prejudicing adjudicative likelihood of pro- ceeding. [Emphasis added.] opinion Giovan’s reveals that he was aware that 3.6 MRPC does not apply nonlawyers. Nevertheless, he concluded that a nonlawyer client “is not immune for knowingly doing what lawyers] [her cannot.” MRPC 3.6 does not apply to nonlawyers; therefore, it was an abuse of discretion to base dismissal of Ms. Mal- donado’s case on her violation of a rule that does not apply to her.

Further, Judge Giovan failed to identify any violation of MRPC 3.6 by Ms. attorneys Maldonado’s that war- rants dismissal of the case. Judge Giovan noted that her lawyers “appeared television news broadcasts that specific made references to Mr. Bennett’s criminal con- However, viction.” Judge Giovan did not identify a specific instance when the lawyers themselves men- tioned the conviction in these publica- broadcasts or My tions. review the record reveals that the lawyers did not themselves refer to the conviction. 431 Ford Motor Co Maldonado v Opinion Dissenting Weaver, J. heard the Giovan Judge before year true that one

It is two months before to dismiss and motion defendant’s firm the law expunged, conviction prior defendant’s release that press issued a Ms. representing Judge prior conviction. Bennett’s referred to defendant 3.6, MRPC release violated press that the found Giovan imminent trial was lawyers the knew that suggesting But the information release was issued. press the when press referred to the conviction prior defendant’s about Thus, it cannot be already well-publicized. release was issued, a release was that, press when concluded the content have that expected would person reasonable pro- adjudicative likely prejudice release would of the majori- Furthermore, contrary to materially. ceeding otherwise, prior convic- assertion because iy’s lawyer’s 2001 before well-publicized tion was release, release cannot be considered press press that referred publications news subsequent source for all prior to the conviction. press that release

Judge suggested also Giovan 16, February Macdonald’s Judge somehow violated 2001, order, excluded evidence of defendant’s which However, Mac- Judge from trial. while prior conviction of defendant’s donald’s order excluded the evidence trial, did prohibit conviction from not prior by either prior reference to the conviction all reasons, it was lawyers.2 For these Macdonald, Judge Judge case over from After Giovan took the joint entry of an filed a motion for defendant Ford and defendant Bennett regarding directing excluded he instructed order the witnesses July impermissible testimony In their brief on 2002. evidence and every request, in the supporting stated that witness their defendants separate had to trial of Elezovic v Ford Motor Co indicating they sign had advised of been off on a statement evidence, regarding ruling by the Court inadmissible 476 Mich Dissenting Weaver, reasonable for premise Giovan to his dis-

missal of plaintiffs case on the actions of lawyers. her majority admits MRPC 3.6 not apply does Ms. Maldonado lawyer. because she is not a Ante at 396. Further, Giovan, like Judge the majority identify fails to any specific instances which Ms. Maldonado’s law- yers But, violated MRPC 3.6. rather than acknowledg- ing the circuit court’s abuse of discretion in relying on MRPC 3.6 to dismiss Ms. case, Maldonado’s the major- ity grasps for and creates its own justifica- alternative tions for the circuit court’s order.

The majority’s primary justification for its decision to affirm the order of dismissal is the need for order in case, the court. In this the majority concludes that the dismissal of Ms. Maldonado’s case was authorized un- der 2.504(B)(1), MCR which provides: plaintiff If the comply fails to with [the court] rules order, may

court summary a defendant move for dismissal against of an action or a claim that defendant. However, the mere fact that the court permits rule circuit court to dismiss a case does not mean that they that anything any were not to mention about excluded evidence, they consequence understood the for men-

tioning any of the excluded evidence would be sanctions includ- ing contempt imposition of all the costs of a mistrial. request process Defendants the same in this case. apparently hoped Judge defendants Giovan would issue an order in Judge this case like that which Macdonald had issued in the prevent Elezovic case mentioning witnesses from defendant Bennett’s prior during testimony conviction their Judge on the witness stand. But Giovan did not issue such order. any event, appears In only the Elezovic order to have limited the speech courtroom; witnesses’ inside the it preventing was directed at impermissible testimony during regarding the Elezovic trial defendant prior Judge Bennett’s conviction that Macdonald had ordered to be excluded from the evidence. Motor Co Maldonado v Ford Opinion by Dissenting Weaver, By plain on a terms justified whim. dismissal 2.504(B)(1), there be a violation of an MCR must justify summary rule or order to court applicable dismissal of a case. 2.504(B)(1) justifies the make it seem like MCR

To case, majority intentionally plaintiffs dismissal appear the facts to make misstates majority order. The lawyers violated a court that if “Judge expressly warned states: Giovan regarding to disseminate information she continued Judge excluded conviction violation of order, he would dismiss her case. Plaintiff Macdonald’s and, thus, Judge obey warning failed to Giovan her Ante at This is dismissed case.” 396-397. properly (1) warning are: Judge untrue. The facts Giovan’s (2) court,3 there a court not an order of never was or references to defen- limiting pretrial publicity order (3) conviction, Macdonald’s prior dant Bennett’s convic- excluding order evidence of defendant Bennett’s from sexual ha- exposure tion for indecent no limitation on imposed pretrial public- rassment trial (4) Judge premise Giovan did not his dismissal ity, instead, he warnings; on violation of his plaintiffs incorrectly attributed activities to her law- plaintiffs they had violated yers support his conclusion MRPC 3.6. majority heavily also relies on assertion lawyers its were

throughout opinion referring prior to Bennett’s quoted publicly themselves assertion, none of Contrary majority’s conviction. 3, 2002, Referring -warning July hearing at on to the say thing disqualification, Judge said: “I want to motion for his Giovan gag gag I said in court a order. Not so. about orders. You’ve called what fact, gag gag orders. I’ve never issued a As a matter of don’t believe order.” 476 MICH

Dissenting Opinion by Weaver, by majority quoted the broadcasts or articles cited or discussed statements Ms. Maldonado’s lawyers regarding prior Bennett’s conviction for in- exposure. decent In those articles, broadcasts and Ms. lawyers Maldonado’s made statements about the case perception and about their that the circuit court was expunged biased, but not about the Im- conviction. mediately Judge after Macdonald ruled that the con- viction Judge excluded, would be which was months before assigned lawyers

Giovan was case, were quoted saying they appeal as would that order. quoted Thereafter, all statements about Bennett’s prior conviction were made Maldonado, Ms. by any Ms. Maldonado restricted order or making repeated public court rule from reference to prior conviction. It was an abuse of discretion for Giovan to plaintiffs lawyers responsibility attribute to for state- by plaintiff press ments made and the about the well- prior known fact that Bennett had a conviction for exposure. organized indecent polity It does not serve an majority ruling for the to affirm a that was based on a whim rather than the law.

HI organized polity A cornerstone for an is that courts orderly way, opposed of law acting will act in an as organized society, on disputes a whim. In are taken adjudication to a court of law for because a court impartial and will handle cases with fairness and pursuant Dismissing to the law. Ms. Maldonado’s case legal without a dismissing foundation is the same as majority’s the case on the basis of a whim. The decision to affirm the circuit court’s order

damages Co Ford Motor v Dissenting Weaver, J. contrary system judicial integrity and, tenets majority’s the basic rhetoric, undermines society. organized anof WEAVER,

KELLY, J., concurred with

Case Details

Case Name: Maldonado v. Ford Motor Co.

Court Name: Michigan Supreme Court

Date Published: Jul 31, 2006

Citation: 719 N.W.2d 809

Docket Number: Docket 126274

Court Abbreviation: Mich.