Grievance Administrator v. Fieger

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh

Elizabeth A. Weaver

Marilyn Kelly

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

FILED JULY 31, 2006

GRIEVANCE ADMINISTRATOR,

Petitioner-Appellant,

v No. 127547

GEOFFREY N. FIEGER,

Respondent-Appellee.

BEFORE THE ENTIRE BENCH

TAYLOR, C. J.

As a preliminary matter, this opinion addresses the issues raised on appeal

in this case. By a separate opinion in this case, the signers of this majority

opinion, Chief Justice Taylor, Justice Corrigan, Justice Young, and Justice

Markman, respond to the allegations of Justice Weaver regarding our suitability to

sit in this case.

In this case, we conclude that certain remarks by attorney Geoffrey N.

Fieger about the appellate judges who were hearing his client’s case violated

MRPC 3.5(c) (which prohibits undignified or discourteous conduct toward the

tribunal) and MRPC 6.5(a) (which requires a lawyer to treat with courtesy and

respect all persons involved in the legal process), and that those rules (sometimes

referred to as “courtesy” or “civility” rules) are constitutional. Accordingly, we

reverse the opinion and order of a divided Attorney Discipline Board (ADB) that

incorrectly concluded the rules were unconstitutional and remand for the

imposition of the agreed-to professional discipline, a reprimand, on Mr. Fieger.

I. Facts and Proceedings Below

In 1997, a jury in the Oakland Circuit Court returned a $15 million verdict

in a medical malpractice action in which Mr. Fieger represented the plaintiff

Salvatore Badalamenti. On appeal, the defendants hospital and physician claimed

that the verdict was based on insufficient evidence and that they had been denied

their constitutional right to a fair trial by Mr. Fieger’s intentional misconduct.

After hearing argument, a three-judge panel of the Court of Appeals, Jane Markey,

Richard Bandstra, and Michael Talbot, unanimously ruled on August 20, 1999,

that the defendants were entitled to judgment notwithstanding the verdict because

the plaintiff had failed to provide legally sufficient evidence that would justify

submitting the case to the jury.1 The panel also held that Mr. Fieger’s repeated

misconduct by itself would have warranted a new trial. In particular, the Court of

Appeals indicated that Mr. Fieger (1) without any basis in fact, accused defendants

and their witnesses of engaging in a conspiracy, collusion, and perjury to cover up

malpractice, (2) asserted without any basis in fact that defense witnesses had

1

Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 284;

602 NW2d 854 (1999).

2

destroyed, altered, or suppressed evidence, and (3) insinuated without any basis in

fact that one of the defendants had abandoned the plaintiff’s medical care to

engage in a sexual tryst with a nurse. The panel described Mr. Fieger’s

misconduct as “truly egregious” and “pervasive” and concluded that it

“completely tainted the proceedings.” Id. at 289, 290.

Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that

which he had exhibited during the Badalamenti trial and on his then-daily radio

program in Southeast Michigan, continued by addressing the three appellate

judges in that case in the following manner, “Hey Michael Talbot, and Bandstra,

and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss

my ass, too.” Mr. Fieger, referring to his client, then said, “He lost both his hands

and both his legs, but according to the Court of Appeals, he lost a finger. Well,

the finger he should keep is the one where he should shove it up their asses.”

Two days later, on the same radio show, Mr. Fieger called these same

judges “three jackass Court of Appeals judges.” When another person involved in

the broadcast used the word “innuendo,” Mr. Fieger stated, “I know the only thing

that’s in their endo should be a large, you know, plunger about the size of, you

know, my fist.” Finally, Mr. Fieger said, “They say under their name, ‘Court of

Appeals Judge,’ so anybody that votes for them, they’ve changed their name from,

3

you know, Adolf Hitler and Goebbels, and I think—what was Hitler’s—Eva

Braun, I think it was, is now Judge Markey, she’s on the Court of Appeals.”2

Subsequently, Mr. Fieger filed a motion for reconsideration before the same

panel. After that motion was denied, this Court denied Mr. Fieger’s application

for leave to appeal on March 21, 2003.3

On April 16, 2001, the Attorney Grievance Commission (AGC), through its

Grievance Administrator, filed a formal complaint with the ADB, alleging that Mr.

Fieger’s comments on August 23 and 25, 1999, were in violation of several

provisions of the Michigan Rules of Professional Conduct, including MRPC

3.5(c), MRPC 6.5(a), and MRPC 8.4(a) and (c).4 While the complaint was

pending, the parties entered into a stipulation. In return for Mr. Fieger’s

agreement not to contest that his remarks had violated MRPC 3.5(c) and MRPC

2

The three appellate judges did not respond to Mr. Fieger during this

period. Code of Judicial Conduct Canon 3(A)(6) states that a judge should abstain

from public comments about a pending or impending proceeding in any court.

The rationale for this rule is, as we stated in In re Hocking, 451 Mich 1, 18; 546

NW2d 234 (1996), the avoidance of a media war of words that may erode public

confidence in the judiciary.

3

Badalamenti v William Beaumont Hosp-Troy, 463 Mich 980 (2001).

4

The ADB is this Court’s adjudicative arm for discharging our

responsibility to supervise and discipline Michigan attorneys. MCR 9.110(A).

MRPC 3.5(c) provides that a lawyer shall not “engage in undignified or

discourteous conduct toward the tribunal.” MRPC 6.5(a) provides that “[a] lawyer

shall treat with courtesy and respect all persons involved in the legal process.”

MRPC 8.4(a) provides that it is professional misconduct for a lawyer to “violate or

attempt to violate the Rules of Professional Conduct, knowingly assist or induce

another to do so, or do so through the acts of another[.]” MRPC 8.4(c) provides

that it is professional misconduct for a lawyer to “engage in conduct that is

prejudicial to the administration of justice[.]”

4

6.5(a), the charges alleging a violation of MRPC 8.4(a) and (c) would be

dismissed. The parties further stipulated the sanction of a reprimand. The

agreement was specifically conditioned on Mr. Fieger’s being allowed to argue on

appeal, while the discipline was stayed, both the applicability and the

constitutionality of MRPC 3.5(c) and MRPC 6.5(a). Mr. Fieger maintained that

the rules were inapplicable because his remarks were made after the case was

completed and were not made in a courtroom. Further, he maintained that the two

rules were unconstitutional because they infringed his First Amendment rights.5

On appeal to the ADB, with one member recused, the remaining eight

members of the ADB issued three opinions. The lead opinion, signed by board

members Theodore J. St. Antoine, William P. Hampton, and George H. Lennon,

concluded that MRPC 3.5(c) and MRPC 6.5(a) did not apply to Mr. Fieger’s

comments because they were made outside the courtroom in a case they regarded

as completed. They further observed that, if the rules did apply, then they were in

violation of the First Amendment. A second opinion, signed by members Lori

McAllister and Billy Ben Baumann, agreed that Mr. Fieger’s comments were

protected by the First Amendment, but dissented from the lead opinion’s

conclusion that the rules only apply to remarks made within the courtroom. A

third opinion, agreeing in part with the second opinion, and signed by members

5

The First Amendment of the United States Constitution, as applied to the

states through the Fourteenth Amendment, provides that the government “shall

make no law . . . abridging the freedom of speech . . . .” US Const, Am I.

5

Marie E. Martell, Ronald L. Steffens, and Ira Combs, Jr., held that Mr. Fieger’s

remarks, even though made outside the courtroom, were prohibited by the rules,

and that the remarks were not protected by the First Amendment.

The sum of all this was that a majority (albeit not the same majority for

each issue) concluded that the two rules applied to Mr. Fieger’s out-of-court

statements, while a different majority concluded that those rules were in violation

of the First Amendment.6

The AGC, through its Grievance Administrator, sought leave to appeal in

this Court. We granted leave to appeal to consider whether the remarks by Mr.

Fieger, although uncontestedly discourteous, undignified, and disrespectful,

nevertheless did not warrant professional discipline because they were made

outside the courtroom and after the Court of Appeals had issued its opinion. We

also granted leave to appeal to consider whether the ADB possesses the authority

to decide issues of constitutionality and whether the two rules in question are

constitutional.7

6

We disagree with Justice Cavanagh’s claim that the ADB did not find the

rule unconstitutional. Reading all three opinions issued by the ADB shows that

one majority found the rules applied to Mr. Fieger’s conduct, but a different

majority found that the Constitution forbids sanctioning Mr. Fieger for violating

the rules. This is tantamount to declaring the rules unconstitutional.

7

472 Mich 1244 (2005). Mr. Fieger then filed a notice of removal on June

8, 2005, removing the case to federal court. Because Mr. Fieger could not “meet

his burden to show removal is proper,” the federal district judge granted the

Grievance Administrator’s motion to remand the case back to this Court on

October 19, 2005. Grievance Administrator v Fieger, 409 F Supp 2d 858, 865

(ED Mich, 2005). Mr. Fieger appealed to the Sixth Circuit Court of Appeals. On

(continued…)

6

II. Standards of Review

We typically review the ADB’s factual conclusion that an attorney has

violated a rule of professional conduct for proper evidentiary support on the whole

record. In re Freedman, 406 Mich 256; 277 NW2d 635 (1979); In re Grimes, 414

Mich 483; 326 NW2d 380 (1982). Yet, review of the record for evidentiary

support of the factual conclusions is unnecessary here because Mr. Fieger’s plea

agreement did not contest that the remarks were “undignified, discourteous, and

disrespectful.” The remaining issues to be resolved are questions of law. We

decide de novo the legal issues concerning the ADB’s authority, construction of

the rules of professional conduct, and the constitutionality of these rules.

Grievance Administrator v Underwood, 462 Mich 188, 193-194; 612 NW2d 116

(2000).

III. Attorney Licensure and Discipline in Michigan

Const 1963, art 6, § 58 and MCL 600.9049 give this Court the duty and

responsibility to regulate and discipline the members of the bar of this state.

(…continued)

March 10, 2006, the Sixth Circuit summarily affirmed the district court,

concluding that “there is no conceivable basis to support removal of the action”

under 28 USC 1443(1). Unpublished order, entered March 10, 2006 (Docket No.

05-2572).

8

Const 1963, art 6, § 5 provides that “[t]he supreme court shall by general

rules establish, modify, amend and simplify the practice and procedure in all

courts of this state.”

9

MCL 600.904 provides:

The Supreme Court has the power to provide for the

organization, government, and membership of the state bar of

Michigan, and to adopt rules and regulations concerning the conduct

and activities of the state bar of Michigan and its members, the

schedule of membership dues therein, the discipline, suspension, and

disbarment of its members for misconduct, and the investigation and

examination of applicants for admission to the bar.

7

Grievance Administrator v Lopatin, 462 Mich 235, 241; 612 NW2d 120 (2000).

Most obviously, this responsibility entails concern for the competence, character,

and fitness of attorneys, but historically also has included the issuance of rules

regulating the manner in which lawyers communicate to the public about other

participants in the legal system, primarily judges and other lawyers. While many

other professions are regulated with the goal of ensuring competence and fitness, it

is only the legal profession that also has imposed upon its members regulations

concerning the nature of public comment. The First Amendment implications are

easily understood in such a regulatory regime and this Court, like other courts of

last resort including the United States Supreme Court, has attempted to

appropriately draw the line between robust comment that is protected by the First

Amendment and comment that undermines the integrity of the legal system.

Indeed, whether this line can be drawn anywhere to take cognizance of the

interests of the legal system is the central issue in this case. The proposition

asserted by Mr. Fieger is that, under the First Amendment of the United States

Constitution, there can be no courtesy or civility rules at all of this sort and that

judges and other lawyers assailed verbally, as public figures, have the same

remedies any other public figures have in libel and slander law.10 As the opinions

10

Mr. Fieger does not address the rule restraining judicial speech regarding

a pending case. Code of Judicial Conduct, Canon 3(A)(6). See footnote 2 of this

opinion.

8

of the ADB suggest, the absolutism of this argument is not without some allure.11

Yet, respect for the wisdom of those who have preceded us in the judiciary in this

country and the traditions of the legal process counsel that narrow and carefully

tailored regulations of the sort set forth in MRPC 3.5(c) and MRPC 6.5(a) are

necessary adjuncts to a responsible legal system and are compatible with the First

Amendment. It is first necessary to outline why such regulations are necessary at

all. That is, what substantial interests are these courtesy and civility rules

designed to further? In particular, are there some interests that such rules further

beyond merely protecting judges from the robust criticism that is sometimes a part

of the give-and-take of the democratic process? Do such rules merely insulate

judges from the inconvenience of being held accountable from their public

actions? In establishing rules designed to deter and sanction uncivil and

discourteous conduct on the part of lawyers, we believe that this Court is doing far

more than protecting the sensitivities of judges; rather, we believe that we are

upholding the integrity of that which is being carried out by the judicial branch of

government.

The performance of these responsibilities requires a process in which the

public can have the highest sense of confidence, one in which the fairness and

integrity of the process is not routinely called into question, one in which the

11

For a discussion of the “absolutist” view of the First Amendment and its

problems see Stanford Law Professor John Hart Ely’s Democracy and Distrust; a

Theory of Judicial Review (Cambridge, Mass: Harvard University Press, 1980) pp

109-112.

9

ability of judges to mete out evenhanded decisions is not undermined by the fear

of vulgar characterizations of their actions, one in which the public is not misled

by name-calling and vulgarities from lawyers who are held to have special

knowledge of the courts, one in which discourse is grounded in the traditional

tools of the law—language, precedents, logic, and rational analysis and debate. To

disregard such interests in the pursuit of a conception of the First Amendment that

has never been a part of our actual Constitution would in a real and practical sense

adversely affect our rule of law, a no less indispensable foundation of our

constitutional system than the First Amendment.

These interests in a responsible legal process heretofore have been

unquestioned and have been thought to justify a lawyer discipline system in this

state that encompasses rules on courtesy and civility toward others. Accordingly,

in cases such as Attorney General v Nelson, 263 Mich 686, 701; 249 NW 439

(1933), and more recently in In re Chmura, 461 Mich 517, 535; 608 NW2d 31

(2000) (Chmura I), we have recognized that in order to preserve the integrity of

our legal process, it is of utmost importance that the people have confidence in this

process. We have recognized that rules of the sort at issue here have as their

purpose considerably more than protecting the sensitivities of judges, but are

designed to maintain public respect for a rule of law that is dependent on such

public respect. In Ginger v Wayne Circuit Judge, 366 Mich 675, 679; 116 NW2d

216 (1962), we indicated that a lawyer’s duty to maintain a respectful attitude

toward the courts is “‘not for the sake of the temporary incumbent of the judicial

10

office, but for the maintenance of its supreme importance.’” (Citation omitted.) In

furtherance of this, the law has reposed special stewardship duties on lawyers on

the basis of the venerable notion that lawyers are more than merely advocates who

happen to carry out their duties in a courtroom environment, they are also officers

of the court. In this exclusive role, lawyers have special responsibilities in their

relations with other officers of the court.12

In discussing the scope of this obligation in the 19th century, the United

States Supreme Court stated that attorneys are under an implied “obligation . . . to

maintain at all times the respect due to courts of justice and judicial officers. This

obligation . . . includes abstaining out of court from all insulting language and

offensive conduct toward the judges personally for their judicial acts.” Bradley v

Fisher, 80 US (13 Wall) 335, 355; 20 L Ed 646 (1872).

More recently, the United States Supreme Court elaborated on this unique

status:

12

See, e.g., Ex parte Garland, 71 US (4 Wall) 333, 378; 18 L Ed 366

(1867) (describing attorneys as “officers of the court,” to whom the court awards

that status upon a showing of their “legal learning and fair private character”), and

Goldfarb v Virginia State Bar, 421 US 773, 792; 95 S Ct 2004; 44 L Ed 2d 572

(1975) (noting the historical treatment of lawyers as officers of the courts).

That a lawyer’s role as an officer of the court is distinct and has been

recognized as such can be seen, for example, in the frequent discussions of the

standards of ethical behavior in the regular columns of the President of the

Michigan State Bar in the Michigan Bar Journal. As merely one illustration of

this recognition, in the March 2006 edition, the current President, Thomas W.

Cranmer, asserts that “[l]awyers operate under strict ethical rules, and the rules are

enforced” and “[o]ur disciplinary system is rigorous and active.” Cranmer,

Defending Lawyers, 66 Mich B J 14 (March, 2006).

11

As an officer of the court, a member of the bar enjoys

singular powers that others do not possess; by virtue of admission,

members of the bar share a kind of monopoly granted only to

lawyers. Admission creates a license not only to advise and counsel

clients but also to appear in court and try cases; as an officer of the

court, a lawyer can cause persons to drop their private affairs and be

called as witnesses in court, and for depositions and other pretrial

processes that, while subject to the ultimate control of the court, may

be conducted outside courtrooms. The license granted by the court

requires members of the bar to conduct themselves in a manner

compatible with the role of courts in the administration of justice.

[In re Snyder, 472 US 634, 644-645; 105 S Ct 2874; 86 L Ed 2d 504

(1985).]

Michigan has statutorily recognized this status in MCL 600.901, which

provides:

The members of the state bar of Michigan are officers of the

courts of this state, and have the exclusive right to designate

themselves as “attorneys and counselors,” or “attorneys at law,” or

“lawyers.” No person is authorized to practice law in this state

unless he complies with the requirements of the supreme court with

regard thereto.

It is to this end that our bar entrance requirements look to character as well

as competence, and the bar admissions process culminates in a way

unprecedented in other professions with the taking of an oath pursuant to MCL

600.913. This oath provides that the lawyer will, upon being accorded the

privileges provided by membership in the bar,13 (1) maintain the respect due to

courts of justice and judicial officers, (2) abstain from all offensive personality,

13

The fact that membership in the bar is a privilege subject to conditions

was reiterated in Gentile v State Bar of Nevada, 501 US 1030, 1066; 111 S Ct

2720; 115 L Ed 2d 888 (1991), in which the Court stated, “‘Membership in the bar

is a privilege burdened with conditions,’ to use the oft-repeated statement of

Cardozo . . . .” (Citation omitted.)

12

and (3) conduct himself or herself personally and professionally in conformity

with the high standards of conduct imposed on members of the bar as conditions

for the privilege to practice law in Michigan. State Bar Rule 15, § 3(1).

Moreover, MCR 9.103(A) provides:

The license to practice law in Michigan is, among other

things, a continuing proclamation by the Supreme Court that the

holder is fit to be entrusted with professional and judicial matters

and to aid in the administration of justice as an attorney and

counselor and as an officer of the court. It is the duty of every

attorney to conduct himself or herself at all times in conformity with

standards imposed on members of the bar as a condition of the

privilege to practice law. These standards include, but are not

limited to, the rules of professional responsibility and the rules of

judicial conduct that are adopted by the Supreme Court.

As contemplated by this rule, this Court has promulgated the Michigan

Rules of Professional Conduct. Of immediate interest is MRPC 3.5(c), which

does not preclude criticism by a member of the legal profession, of even the most

robust character, but precludes only “undignified or discourteous conduct toward

the tribunal.” The comment on MRPC 3.5 elaborates:

The advocate’s function is to present evidence and argument

so that the cause may be decided according to law. Refraining from

undignified or discourteous conduct is a corollary of the advocate’s

right to speak on behalf of litigants. A lawyer may stand firm

against abuse by a judge, but should avoid reciprocation; the judge’s

default is no justification for similar dereliction by an advocate. An

advocate can present the cause, protect the record for subsequent

review, and preserve professional integrity by patient firmness no

less effectively than by belligerence or theatrics.

Similarly, MRPC 6.5(a) provides only that “[a] lawyer shall treat with courtesy

and respect all persons involved in the legal process.” The comment on MRPC 6.5

explains:

13

A lawyer is an officer of the court, who has sworn to uphold

the federal and state constitutions, to proceed only by means that are

truthful and honorable, and to avoid offensive personality. It follows

that such a professional must treat clients and third persons with

courtesy and respect. For many citizens, contact with a lawyer is the

first or only contact with the legal system. Respect for law and for

legal institutions is diminished whenever a lawyer neglects the

obligation to treat persons properly. It is increased when the

obligation is met.

As should be clear, these rules are designed to prohibit only “undignified,”

“discourteous,” and “disrespectful” conduct or remarks. The rules are a call to

discretion and civility, not to silence or censorship, and they do not even purport

to prohibit criticism. The wisdom of such rules was recognized by United Stated

Supreme Court Justice Potter Stewart in his concurring opinion in In re Sawyer,

360 US 622, 646; 79 S Ct 1376; 3 L Ed 2d 1473 (1959), in which he remarked,

“A lawyer belongs to a profession with inherited standards of propriety and

honor, which experience has shown necessary in a calling dedicated to the

accomplishment of justice. He who would follow that calling must conform to

those standards.”

Equally pertinent is the Preamble to our Rules of Professional Conduct, “A

lawyer should demonstrate respect for the legal system and for those that serve it,

including judges, other lawyers and public officials. While it is a lawyer’s duty,

when necessary, to challenge the rectitude of official action, it is also the lawyer’s

duty to uphold legal process.”

It is in this historical and professional context that Mr. Fieger’s remarks

must be reviewed.

14

IV. Analysis of the Applicability of the Rules

A. Were Mr. Fieger’s remarks made after the conclusion of the case?

Mr. Fieger asserts that the remarks in controversy were made after the

Badalamenti case was concluded. This matter is consequential because greater

restraint, if indeed any is constitutionally allowed, is permissible when a case is

ongoing than when it is completed. As the United States Supreme Court said in

Gentile, supra at 1070, “‘When a case is finished, courts are subject to the same

criticism as other people, but the propriety and necessity of preventing

interference with the course of justice by premature statement, argument or

intimidation hardly can be denied.’” (Citation omitted.) Accordingly, “the speech

of lawyers representing clients in pending cases may be regulated under a less

demanding standard than that established for regulation of the press . . . .” Id. at

1074.

The obvious question here is whether the Badalamenti case was actually

“pending” at the time of Mr. Fieger’s comments. In answering this question, we

are guided both by the Michigan Court Rules and by the ordinary definition of

“pending.” MCR 7.215(F)(1)(a)14 states that a Court of Appeals decision

14

Similarly, under MCR 7.210(H), the Court of Appeals does not treat a

case as disposed of (and so does not return the record to a lower court) until the

period for application for leave to appeal before our Court expires and no motion

for reconsideration or other special request remains pending in the Court of

Appeals.

We note that MCR 7.317(C) and (D), rules applicable in this Court,

similarly distinguish between entry of an order or opinion and issuance—i.e., the

effectiveness—of the same. This distinction further suggests that time may

(continued…)

15

generally does not become effective until “after the expiration of the time for

filing an application for leave to appeal to the Supreme Court, or, if such an

application is filed, after the disposition of the case by the Supreme Court.”.

Thus, at a minimum, a decision in the Court of Appeals is still “pending” until the

expiration of the period for filing an application for leave to appeal that decision

in this Court.15 At all times pertinent,16 the period for filing such an application

was 21 days from the date of the mailing or filing appealed from, or if a timely

motion for rehearing was filed in the Court of Appeals, 21 days from the mailing

of an order denying the motion. MCR 7.302(C)(2)(c). Moreover, Black’s Law

Dictionary (6th ed), defines “pending” as follows:

Begun, but not yet completed; during; before the conclusion

of; prior to the completion of; unsettled; undetermined; in process of

settlement or adjustment. Awaiting an occurrence or conclusion of

action, period of continuance or indeterminancy. Thus, an action or

(…continued)

intervene between when an order or opinion enters and when it reaches finality.

Indeed, our own appellate court practice is not to remit the record to the lower

court until this time has elapsed. See, e.g., Luscombe v Shedd’s Food Products

Corp, 212 Mich App 537, 538-541; 539 NW2d 210 (1995) (describing how a trial

court did not technically regain jurisdiction over a case until the Court of Appeals

remitted the record back to the trial court); see also Black’s Law Dictionary (6th

ed) (defining “remittitur of record” as “[t]he returning or sending back by a court

of appeal of the record and proceedings in a cause, after its decision thereon, to the

court whence the appeal came . . .”). Only after the remittitur does our clerk treat

a case as disposed of.

15

We express no opinion about whether a decision of a lower court is still

“pending’ for attorney speech purposes after an appellate court has taken the case

on appeal. It is also unnecessary for us to decide, and we do not decide here, the

limits our civility rules place on lawyers after a case has been completed.

16

MCR 7.302(C) now provides than an application must be filed within 42

days in civil cases, or within 56 days in criminal cases.

16

suit is “pending” from its inception until the rendition of final

judgment.

Mr. Fieger made his remarks on August 23 and 25, 1999, three days and

five days, respectively, after the Court of Appeals issued its decision, when the

time for filing either for rehearing in the Court of Appeals or an application for

leave to appeal in this Court had not yet expired. Indeed, Mr. Fieger ultimately

did file a timely motion for rehearing in the Court of Appeals on September 10,

1999.

Because the Court of Appeals decision had not yet become effective as of

the date of Mr. Fieger’s comments, and because the Court of Appeals, by granting

a motion for reconsideration or rehearing, could still have affected the substantial

rights of his client, we conclude that the Badalamenti case was “begun, but not yet

completed” that Mr. Fieger’s comments were made “during,” “before the

conclusion of,” and “prior to the completion of” that case. Moreover, the case was

“awaiting an occurrence or conclusion of action”—namely, the running of the

aforementioned periods for filing. During this interim, then, the case was in a

“period of continuance or indeterminancy.”

Thus, the Badalementi case was clearly still pending when Mr. Fieger made

his remarks.17

17

The dissents contend that the Badalamenti case was not “pending”

because nothing remained undecided at the time Mr. Fieger made his statements.

This position is incorrect and fails to give full meaning to MCR 7.215(F)(1)(a) and

MCR 7.302(C)(2)(a) and (b), which make it clear that a Court of Appeals decision

does not become effective until after the expiration of the time for filing an

application for leave to appeal in this Court. The dissents claim there is a

difference between when a case is no longer pending and when it is effective. But,

(continued…)

17

B. Do the rules only apply to comments made in a courtroom?

Mr. Fieger next asserts that MRPC 3.5(c) and MRPC 6.5(a) only apply to

comments within a courtroom or its immediate environs. We disagree.

MRPC 3.5(c) provides that a lawyer shall not “engage in undignified or

discourteous conduct toward the tribunal.” (Emphasis added.) We note that the

rule does not provide a definition of the word “toward.” It is well established that

if a term in a court rule is not defined, we interpret the term in accordance with its

everyday, plain meaning. See, e.g., People v Petit, 466 Mich 624, 627; 648

NW2d 193 (2002). Random House Webster’s College Dictionary (1997) lists

several definitions of the preposition “toward,” including “in the direction of” and

“with respect to; as regards.”

In light of this definition, we disagree with Mr. Fieger’s argument that the

rule is inapplicable to his statements because those statements were directed

toward an audience and outside a courtroom, and, therefore, not toward a tribunal.

Mr. Fieger made remarks about (a) the three judges (b) who comprised the panel

(…continued)

the opposite of “pending” is generally understood as “final” and there is no

question that the case was not final when Mr. Fieger made his remarks. Indeed,

the fact that Mr. Fieger filed a motion for rehearing in the Court of Appeals after

making his comments demonstrates the case was still pending. The Court of

Appeals could have changed its mind after considering the motion for rehearing.

The fact that Mr. Fieger filed an application for leave to appeal in this Court, after

the Court of Appeals denied the motion for rehearing, also demonstrates that the

case was still pending, i.e., awaiting rendition of a final judgment. This Court

could have taken summary action or action after granting leave to appeal that

would have changed the Court of Appeals judgment. Thus, the Badalamenti case

was indisputably pending when Mr. Fieger made his remarks.

18

(c) that ruled against his client (d) with regard to the content and value of that

judgment, (e) which remarks aired on a public broadcast. Even though made

outside a courtroom, Mr. Fieger’s statements attacked the judges in their capacity

as judges and in a forum designed to reach both the public and these judges (who

were included among the members of the community who could receive this

broadcast). Because such comments were “in the direction of” and “with respect

to” these judges, they were necessarily comments made “toward the tribunal.”

There is nothing in this phrase “toward the tribunal” that limits the

applicability of the rule only to remarks made in a courtroom.18 Mr. Fieger’s

construction of the rule would effectively insert the requirement that the conduct

“actually disrupt the proceeding.” Yet this language, which is in the American

Bar Association version of this rule, is absent from our rule. Further, if MRPC

3.5(c) applies only when an attorney is in a courtroom, the rule would be largely

superfluous, and of little practical utility, given that a court’s contempt power,

enforceable by fine or incarceration pursuant to MCL 600.1711(1), is always

18

The dissents would limit the phrase “toward the tribunal” to comments

made in a courtroom. But there is no warrant for such a limitation in the wording

of MRCP 3.5(c), which contemplates a broader prohibition. Moreover, Mr. Fieger

called the judges by name. Surely this demonstrates that the remarks were made

“toward the tribunal.” Notwithstanding Justice Kelly’s assertion that this opinion

“necessarily chills comment,” ante at 10, it will only “chill,” those comments that

are properly “chilled” among members of a profession who are bound to conduct

themselves in a courteous and civil manner. In contrast with the dissents, we have

no difficulty concluding that the interests of the rule of law, one of the towering

achievements of our society, outweighs the interests of an officer of the court in

uttering vulgar epithets toward a judge in a pending case.

19

available to restore or maintain order when the offending conduct or remarks

occur before the judge in the courtroom.

The construction of the rule asserted by Mr. Fieger fails to accord

consideration to the importance the courtesy and civility rules serve as a vehicle

for preserving the public’s confidence in the integrity of the legal process. Most

significantly, however, it is a construction that is not in accord with the actual

language of the rule. Thus, we agree with the conclusion of the majority of the

ADB that MRPC 3.5(c) applies to Mr. Fieger’s remarks.

MRPC 6.5(a) provides that “[a] lawyer shall treat with courtesy and

respect all persons involved in the legal process.” Mr. Fieger argues that

somehow this rule does not apply to a lawyer’s use of abusive language directed

toward judges in the context of a radio program. Again, we disagree. MRPC

6.5(a) applies in this instance because, as the previous discussion makes obvious,

the Court of Appeals judges were “persons involved in an ongoing legal

process.”19

Therefore, we conclude that the comments made by Mr. Fieger are in

violation of both MRPC 3.5(c) and MRPC 6.5(a).

19

Mr. Fieger also asserts that this rule has only been applied in situations

involving assaultive, threatening, or obstructive direct behavior. In this regard we

point out that in Grievance Administrator v Vos, 466 Mich 1211 (2002), we

specifically stated that MRPC 3.5(c) and MRPC 6.5(a) address discourteous

behavior and “do not require proof of threatening behavior or statements.”

20

V. Can the ADB Declare a Rule Unconstitutional?

The AGC, through its Grievance Administrator, asserts that the ADB has

no authority to declare unconstitutional a rule of professional conduct. We agree.

A disciplinary proceeding in Michigan commences upon the filing of a

formal complaint and is heard before a panel of three lawyers. Appeals are then

taken to the ADB. The ADB is an administrative body, comprised of nine

individuals appointed by this Court, three of whom are not attorneys.20 While the

ADB, like all other governmental entities, must operate in accord with the

Constitution, for example, on questions such as compelled witness self-

incrimination,21 it does not possess the power to hold unconstitutional rules of

professional conduct that have been enacted by this Court. As we said in Wikman

v Novi, 413 Mich 617, 646-647; 322 NW2d 103 (1982), administrative agencies

generally do not possess the power to declare statutes unconstitutional because

this is a core element of the “judicial power” and does not belong to an agency

that is not exercising this constitutional power. The power of judicial review is

one that belongs exclusively to the judicial branch of our government. Lewis v

Michigan, 464 Mich 781, 788-789; 629 NW2d 868 (2001). Const 1963, art 3, §

20

See State Bar Grievance Administrator v Estes, 390 Mich 585, 592; 212

NW2d 903 (1973), where this Court held that the power of the ADB’s predecessor

was “administrative and quasi-judicial in nature” rather than judicial.

21

See MCR 9.113(B)(3).

21

2. See, also, Richardson v Secretary of State, 381 Mich 304, 309; 160 NW2d 883

(1968).22

Should any attorney appearing before the ADB believe a rule itself to be

unconstitutional, such as in this case, resort must be made to an appeal to this

Court, and, if we concur in this assessment, it is our responsibility to declare such

rule unconstitutional. See MCR 9.122(A)(1) and Fieger v Thomas, 74 F3d 740,

747 (CA 6, 1996).23

VI. Are MRPC 3.5(c) and MRPC 6.5(a) Unconstitutionally Vague?

Mr. Fieger next argues that whatever the other constitutional shortcomings

of MRPC 3.5(c) and MRPC 6.5(a), they are unconstitutionally vague because a

lawyer cannot know ahead of time which of his or her remarks might run afoul of

the rules. Such a challenge cannot be successfully advanced here because there is

no question that even the most casual reading of these rules would put a person

clearly on notice that the kind of language used by Mr. Fieger would violate

MRPC 3.5(c) and MRPC 6.5(a). To invite the sodomization of a judge, with a

22

The dissents would hold that the ADB, although none of its members is a

judge, and although some of its members are not even lawyers, may declare

unconstitutional a rule of professional conduct enacted by this Court. We disagree

for the reasons already stated. The power of judicial review belongs only to the

judicial branch of government and nothing within our Constitution has extended

this power to the ADB. Given that only judges can exercise the core judicial

power of declaring a statute or rule unconstitutional, there is no basis for the

dissents’ assumption that this Court could delegate this power to an agency we

have created that is not composed of judges.

23

It is also the case that a lawyer may institute an original action in the

Michigan Supreme Court to implement the Court's superintending control over the

(continued…)

22

client’s finger, a plunger, or his own fist, and to invite a judge to kiss one’s ass

are statements that do not come close to the margins of the “civility” or

“courtesy” rules.24 While MRPC 3.5(c) and MRPC 6.5(a) are undoubtedly

flexible, and the AGC will exercise some discretion in determining whether to

charge an attorney with violating them, perfect clarity and precise guidance have

never been required even of regulations that restrict expressive activity. Ward v

Rock Against Racism, 491 US 781, 794; 109 S Ct 2746; 105 L Ed 2d 661 (1989).

A statute or rule is not required to define an offense with “mathematical

certainty.” Grayned v City of Rockford, 408 US 104, 110; 92 S Ct 2294; 33 L Ed

2d 222 (1972). Because statutes and rules are presumptively valid, they “‘are not

automatically invalidated as vague simply because difficulty is found in

determining whether certain marginal offenses fall within their language.’”

Parker v Levy, 417 US 733, 757; 94 S Ct 2547; 41 L Ed 2d 439 (1974) (citation

omitted).

(…continued)

ADB. MCR 7.304(A). A lawyer may also raise constitutional challenges in a

complaint seeking mandamus in this Court. Fieger v Thomas, supra at 747.

24

Justice Kelly’s dissent states a concern that our rules of professional

conduct might be arbitrarily or discriminatorily enforced by the AGC. Yet, we

note that any validly enacted rule, regulation, or statute carries with it the risk of

arbitrary or discriminatory enforcement. Such concerns, when they arise, are

typically addressed on a case-by-case basis, and Justice Kelly’s dissent offers no

reason to believe that alleged violations of MRPC 3.5(c) or MRPC 6.5(a) could

not be handled in such a manner. Moreover, neither respondent nor Justice Kelly

points to a single case in which an attorney was charged with violating our

courtesy or civility rules for inconsequential behavior.

23

If “civility” and “courtesy” rules can ever satisfy constitutional muster, as

we believe they can, it is beyond peradventure that the comments at issue in this

case clearly violated such rules.

Mr. Fieger also argues that his remarks are political speech and thus fit

within the protection afforded campaign speech in In re Chmura (After Remand),

464 Mich 58, 72-73; 626 NW2d 876 (2001) (Chmura II). In Chmura II we

considered the propriety of a variety of remarks made by an incumbent judge

during a reelection campaign that had served as the basis for sanction by the

Judicial Tenure Commission of our state. We concluded in light of the First

Amendment that the judge’s statements were all constitutionally protected.25 But,

the Chmura II political context is entirely missing here. There was no political

campaign underway nor was Mr. Fieger attempting by his comments to

participate in such a campaign.26 Thus, Chmura II offers no safe harbor for Mr.

Fieger. See, also, In re Palmisano, 70 F3d 483, 487 (CA 7, 1995) (courts may

require attorneys to speak with greater care and civility than is the norm in

political campaigns).

25

The later holding of the United States Supreme Court in Republican

Party of Minnesota v White, 536 US 765; 122 S Ct 2528; 153 L Ed 2d 694 (2002),

is, we believe, harmonious with Chmura II.

26

None of the three Court of Appeals judges who were the target of Mr.

Fieger’s comments was up for reelection until November 2002 for a six-year term

beginning January 1, 2003.

24

Not only was Mr. Fieger’s speech not campaign speech, it was not political

speech of any kind. In discussing political speech, the United States Supreme

Court has stated:

“The freedom of speech and of the press guaranteed by the

Constitution embraces at the least the liberty to discuss publicly and

truthfully all matters of public concern without previous restraint or

fear of subsequent punishment.” [Thornhill v Alabama, 310 US 88,

101-102; 60 S Ct 736; 84 L Ed 1093 (1940).] The First Amendment

“was fashioned to assure unfettered interchange of ideas for the

bringing about of political and social changes desired by the people.”

Roth v United States, 354 U. S. 476, 484 [77 S Ct 1304; 1 L Ed 2d

1498] (1957). [Meyer v Grant, 486 US 414, 421; 108 S Ct 1886;

100 L Ed 2d 425 (1988).]

To invite the sodomization of a judge, with a client’s finger, a plunger, or one’s

own fist, and to invite a judge to kiss one’s ass can hardly be considered an

“interchange of ideas for the bringing about of political and social changes.”

“Resort to epithets or personal abuse is not in any proper sense communication of

information or opinion safeguarded by the Constitution . . . .” Cantwell v

Connecticut, 310 US 296, 309-310; 60 S Ct 900; 84 L Ed 1213 (1940). 27

27

In discussing cases that have given vulgar and offensive speech First

Amendment protection, the dissents lose sight of the fact that we are dealing here,

not with the general context of the right of citizens to speak freely, but with the

very specific context of the right of attorneys, who are licensed in terms of

character and fitness and who serve as officers within our legal system, to engage

in such speech in the course of their professional responsibilities. In conflating

these two contexts, the various dissents lose sight of the governing legal standard.

In Gentile, the United States Supreme Court supplied the standard for a First

Amendment challenge to a professional conduct rule. The Court concluded that

the state had an interest in the integrity of its judicial system and that the

regulation at issue there was narrowly tailored, viewpoint neutral, and left open

alternative avenues for expression. Gentile, supra at 1071-1076. Although First

Amendment jurisprudence contains a plethora of colorful cases, including Cohen v

(continued…)

25

Mr. Fieger further urges that his remarks should receive the same broad

protection the First Amendment was found to provide in New York Times Co v

Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964). We disagree because

this is an attorney discipline matter and more restrictive rules are permissible in

such a circumstance. In Sullivan, the United States Supreme Court created a high

standard of proof for a public official seeking civil damages for defamation.

Damages can only be recovered if the public figure can prove by clear and

convincing evidence that the offending statements were made with knowledge

that they were false or with reckless disregard of their falsity. Yet here, we deal

with a matter of professional discipline. There is no civil action, and, thus,

Sullivan is inapplicable.28 Nor are the interests that prompted Sullivan at all in

evidence here. Whereas Sullivan was designed to further robust public discussion

in the press, and to avoid the chilling effects on the media of defamation or libel

lawsuits predicated upon mere mistakes or inaccuracies in reporting, neither of

these constitutional concerns is implicated by court rules allowing the sanctioning

(…continued)

California, 403 US 15; 91 S Ct 1780; 29 L Ed 2d 284 (1971), and Fed

Communications Comm v Pacifica, 438 US 726; 98 S Ct 3026; 57 L Ed 2d (1978),

we need not address every imaginable argument that could be marshaled from

them. As in Chmura I, we are bound to apply the governing standard of Gentile,

rather than consider and dispose of every possible objection that may be found in

more “general” First Amendment jurisprudence.

28

In Garrison v Louisiana, 379 US 64, 74; 85 S Ct 209; 13 L Ed 2d 125

(1964), overruled on other grounds by Curtis Publishing Co v Butts, 388 US 130,

134 (1967), the United States Supreme Court extended the Sullivan standard to

criminal defamation cases. But, there are no criminal charges at issue here.

26

an attorney for crude or vulgar language directed against a judge in a pending

proceeding.

Further, that the First Amendment is not offended by Michigan’s

disciplinary rules is suggested by Gentile v State Bar of Nevada, supra at 1071,

where the United States Supreme Court stated:

It is unquestionable that in the courtroom itself, during a

judicial proceeding, whatever right to “free speech” an attorney has

is extremely circumscribed. An attorney may not, by speech or other

conduct, resist a ruling of the trial court beyond the point necessary

to preserve a claim for appeal. Even outside the courtroom, a

majority of the Court in two separate opinions in the case of In re

Sawyer, 360 U.S. 622, 3 L. Ed. 2d 79, S. Ct. 1376 (1959), observed

that lawyers in pending cases were subject to ethical restrictions on

speech to which an ordinary citizen would not be. [Citations

omitted; emphasis added.]

Gentile, supra at 1073, also held that in analyzing whether an ethics rule

violates a lawyer’s First Amendment rights, the court must engage “in a

balancing process, weighing the State's interest in the regulation of a specialized

profession against a lawyer's First Amendment interest in the kind of speech that

was at issue.” These state interests include promoting the respect of the courts by

the citizenry and maintaining the integrity of the judicial process so as to enhance

compliance with adjudications. Further, in a system with hundreds of judges,

each of whom is subject to popular election, the state also has an interest in

limiting attorney comment that takes the form of personal attacks on judges,

because a system in which intimidating attacks are permitted fosters the risk of

eventually realizing the intended effect of such attacks: a potentially cowed

judiciary.

27

In Sawyer, the United States Supreme Court considered an order affirming

the suspension of an attorney from practice because of her attack on the fairness

and impartiality of a judge. The plurality opinion, which found the discipline to

be improper, concluded that the comments had not in fact impugned the judge's

integrity. But Justice Stewart, who provided the fifth vote for reversal of the

sanction, observed in his concurring opinion that he could not join any possible

“intimation that a lawyer can invoke the constitutional right of free speech to

immunize himself from even-handed discipline for proven unethical

conduct . . . .” Sawyer, supra at 646. He concluded that “[o]bedience to ethical

precepts may require abstention from what in other circumstances might be

constitutionally protected speech.” Id. at 646-647.

As observed, pursuant to Gentile, supra at 1073, to assess the

constitutionality of a rule of lawyer discipline, a court must weigh the state's

interests in support of the rule against an attorney’s First Amendment interests in

the kind of speech at issue. In this case, we must balance Mr. Fieger’s right to

criticize judges as he did, using foul and vulgar language, against the state’s

interest in the maintenance of a system of lawyer discipline that imposes some

measure of limitation on such language.

Before undertaking this balancing process, it may be appropriate to

consider this Court’s demonstrated solicitude for lawyer speech, and in particular

this lawyer’s freedom of speech, by reviewing how we struck the balance with

Mr. Fieger in an earlier professional disciplinary matter. In Grievance

28

Administrator v Fieger, 469 Mich 1241 (2003), we declined to review a dismissal

by the ADB of an AGC claim that Mr. Fieger had violated MRPC 8.2(a) when he

accused a county prosecutor of covering up a murder because the ADB arguably

had considered Mr. Fieger’s accusations to constitute a comment or opinion on

the office holder’s performance of his duties. As a result, Mr. Fieger was found

not to be subject to sanction for his statement. Although Mr. Fieger’s comment

was an irresponsible and baseless comment, and altogether unfair to the

prosecutor,29 this Court gave every benefit of the doubt to Mr. Fieger in its

interpretation of what he had meant to communicate by his statement. However,

there can be no similar benefit to any doubt in the current case in which Mr.

Fieger has uttered the crudest and most vulgar statements concerning judges in a

pending lawsuit. As the United States Supreme Court stated in Chaplinsky v New

Hampshire, 315 US 568, 572; 62 S Ct 766; 86 L Ed 1031 (1942), quoting

Cantwell v Connecticut, supra at 309-310, “‘Resort to epithets or personal abuse

is not in any proper sense communication of information or opinion safeguarded

by the Constitution . . . .’”

29

Justice Cavanagh stated the following in his concurring statement:

This order should not be construed as signaling any reduced

interest on the part of this Court in upholding standards of

professional civility and in enforcing attorney discipline when

allegedly libelous or slanderous remarks are made by attorneys. I

believe that the respondent's remarks here were irresponsible and

reprehensible, but ultimately I would defer to the judgment of the

Attorney Discipline Board that they were not sanctionable . . . . [469

Mich 1241.]

29

There is no reasonable construction of Mr. Fieger’s remarks that could

lead to the conclusion that these were mere comment on the professional

performance of these three judges of the Court of Appeals. To call a judge a

“jackass,” a “Hitler,” a “Goebbels,” a “Braun” and to suggest that a lawyer is

“declar[ing] war” on them and that the judge should “[k]iss [the lawyer’s] ass,”

or should be anally molested by finger, fist, or plunger, is, to say the least, not to

communicate information; rather, it is nothing more than personal abuse. We

conclude that such coarseness in the context of an officer of the court

participating in a legal proceeding warrants no First Amendment protection when

balanced against this state’s compelling interest in maintaining public respect for

the integrity of the legal process. United States v O’Brien, 391 US 367, 377; 88 S

Ct 1673; 20 L Ed 2d 672 (1968).

MRPC 3.5(c) and MRPC 6.5(a) did not preclude Mr. Fieger from

expressing disagreement with the judges in his case, and they did not preclude

criticism, even strong criticism, from being directed toward these judges; rather,

they only precluded him from casting such disagreement and criticism in terms

that could only bring disrepute on the legal system. The limited restriction placed

by the rules on Mr. Fieger’s speech is narrowly drawn and is no greater than is

necessary to maintain this state’s longstanding and legitimate interests in the

integrity of its legal system. Chmura I, supra.

As the United States Supreme Court stated in In re Snyder, supra at 647:

All persons involved in the judicial process—judges, litigants,

witnesses, and court officers—owe a duty of courtesy to all other

30

participants. The necessity for civility in the inherently contentious

setting of the adversary process suggests that members of the bar

cast criticisms of the system in a professional and civil tone.

It is also the case that our civility and courtesy rules serve to vindicate this

Court’s interest in the good moral character of the lawyers it has licensed to serve

as officers of the court.30 Implicit in being an officer of the court is the

recognition that “‘obedience to ethical precepts may require abstention from what

in other circumstances might be constitutionally protected speech.’” Gentile,

supra at 1071 (citation omitted).31

Mr. Fieger’s comments then are not protected under his various theories of

vagueness, of political speech, or of public-figure comment. It is important,

however, to reiterate that we are not now, nor have we ever in the past, suggested

30

Judges are also subject to courtesy or civility rules and may be sanctioned

for violating such rules upon recommendation of the Judicial Tenure Commission.

Canon 2(B) of the Michigan Code of Judicial Conduct similarly requires judges to

treat others with courtesy. MCR 9.205(B)(1) also requires judges to treat others

with courtesy and respect. We have not ignored this requirement. See, e.g., In re

Moore, 464 Mich 98, 122, 131-133; 626 NW2d 374 (2001), in which we

suspended a judge after we concluded, among other things, that he had violated

Code of Judicial Conduct, Canon 2(B) and 3(A) by making abusive, berating, and

sarcastic comments to jurors, defendants, and attorneys. See, also, In re Del Rio,

400 Mich 665, 716-722; 256 NW2d 727 (1977), in which we sanctioned a judge

after we concluded that he had violated Canons 2(B) and 3(A) by making crass

comments, engaging in extended tongue-lashings, and making threats of

retaliation against attorneys who appeared in his courtroom.

31

This Court explained over 100 years ago in In re Mains, 121 Mich 603,

608-609; 80 NW 714 (1899), that an attorney has no right to so conduct himself or

herself as to dishonor his or her profession or to bring the courts of this state into

disrepute.

31

that judges are beyond criticism.32 As we stated in Attorney General v Nelson,

supra at 701:

An attorney owes devotion to the interests of his clients. He

should be zealous in the maintenance and defense of their rights, and

should be in no way restrained in the discharge of such duty by fear

of judicial disfavor. But at the same time he should be at all times

imbued with the respect which he owes to the court before whom he

is practicing. It is of the utmost importance to the preservation of

our system of government that our people have confidence in the

integrity of our courts.

The point is that lawyers have an unquestioned right to criticize the acts of

courts and judges. In re Estes, 355 Mich 411, 414; 94 NW2d 916 (1959).

Moreover, there is no prohibition on a lawyer engaging in such criticism even

during the pendency of a case. There are limitations only on the form and manner

of such criticism, limitations that serve compelling interests within our

constitutional and legal systems.33

Because Mr. Fieger does not contest that MRPC 3.5(c) and MRPC 6.5(a)

were in fact violated if the questions he has raised on appeal are decided

unfavorably to him, given our answers to these questions, he must now be viewed

as having violated both rules.

32

Indeed, we believe that even a casual observer of Michigan government

will not fail to recognize that there have been many full-throated and aggressive

comments made in recent years by some members of the State Bar of Michigan

concerning the performance of the courts of this state, including this Court.

33

Justice Kelly inexplicably suggests that under our opinion, the “mere

utterance of dissatisfaction could subject an attorney to harmful sanctions.” Post

at 26. This is entirely baseless, as we have clearly indicated that judge’s are not

beyond criticism.

32

We close by quoting the following remarks of the Ohio Supreme Court

nearly a century ago when faced with the same duty to deal with a misbehaving

lawyer as we are today:

When a man enters upon a campaign of vilification he takes

his fate into his own hands and must expect to be held to answer for

the abuse of the privilege extended to him by the constitution. An

attorney of more than twenty years' standing at the bar must be

presumed to know the difference between respectful, fair and candid

criticism, and scandalous abuse of the courts which gave him the

high privilege, not as a matter of right, to be a priest at the altar of

justice. [In re Thatcher, 80 Ohio St 492, 669; 89 NE 39 (1909).]

It is for all these reasons that we conclude that Mr. Fieger’s vulgar and

crude attacks on three members of our Court of Appeals were not constitutionally

protected and that he is subject to professional discipline for having made them.

VII. Response to Justice Kelly’s and Justice Cavanagh’s Dissents

In their repudiation of “courtesy” and “civility” rules, the dissents would

usher an entirely new legal culture into this state, a Hobbesian legal culture, the

repulsiveness of which is only dimly limned by the offensive conduct that we see

in this case. It is a legal culture in which, in a state such as Michigan with

judicial elections, there would be a permanent political campaign for the bench,

pitting lawyers against the judges of whom they disapprove. It is a legal culture

in which rational and logical discourse would come increasingly to be replaced by

epithets and coarse behavior, in which a profession that is already marked by

33

declining standards of behavior would be subject to further erosion, and in which

public regard for the system of law would inevitably be diminished over time.34

By allowing a lawyer to say anything short of libel under New York Times

v Sullivan, the position of the dissents would also necessarily and inevitably

require that judges—persons who are periodically subject to popular reelection

under our Constitution—be allowed to engage in the same kind of “free speech”

to which attorneys are entitled—if only for the purposes of electoral self-

defense.35 Further, such a required loosening of the canons of judicial conduct

would also likely have other lamentable effects that could quickly jeopardize

even the freedom of speech lawyers currently enjoy. It is hard to imagine the

lawyer who would want to test the proposition of how much effect a judge’s

34

Given the position advanced by the dissenting justices in this case and in

Maldonado v Ford Motor Co, 476 Mich ___; ___ NW2d ___ (Docket No.

126274, decided July 31, 2006), one wonders whether the dissenting justices

would simply surrender the legal process to the least-restrained and worst-behaved

members of the bar. With increasingly little need to adhere to the rules necessary

to ensure public confidence in the integrity of the legal process, the dissenters

would create a world in which legal questions come increasingly to be decided,

not by a fair and rational search for truth, but by bullying and uncivil behavior,

personal abuse, one-upmanship, and public exhibitionism on the part of those who

are custodians of this system, the bar. Justice under the law cannot flourish within

such a system.

35

For a glimpse into the likely future, see Ill Sup Ct R 67, which provides:

(3) A candidate for a judicial office:

* * *

(e) may respond to personal attacks or attacks on the

candidate's record as long as the response does not violate subsection

A(3)(d).

34

retaliatory comment adverting to the lawyer’s lack of competence, character, or

the like would have on the lawyer’s practice. Thus, the newly given lawyer right

of speech the dissent would recognize would perversely conduce to a situation

where lawyers would be silenced. While surely all would hope judges would not

use this new opportunity to intimidate the bar, the history of how authority is

eventually used by those empowered is not encouraging. The dissents accord

virtually no consideration to these ramifications of their position. To the

majority, however, such consequences are of grave concern.

VIII. Conclusion

For the reasons set forth in this opinion, we reverse the opinion and order

of the ADB and remand to the ADB for entry of the agreed-to order of reprimand.

Clifford W. Taylor

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

35

STATE OF MICHIGAN

SUPREME COURT

GRIEVANCE ADMINISTRATOR,

Petitioner-Appellant,

v No. 127547

GEOFFREY N. FIEGER,

Respondent-Appellee.

TAYLOR, C. J., and CORRIGAN, YOUNG, and MARKMAN, JJ.

With her dissent, Justice Weaver completes a transformation begun five

years ago, when all six of her colleagues voted not to renew her tenure as Chief

Justice of this Court. This transformation is based neither on principle nor on

“independent” views, but is rooted in personal resentment. This transformation

culminates today in irresponsible and false charges that four of her colleagues are

“bias[ed] and prejudice[d]” against attorney Geoffrey Fieger and therefore must be

disqualified from hearing his cases—a call that Justice Weaver, who has received

Mr. Fieger’s political support, seems to believe that she is uniquely privileged to

make. See post at 1. But just as troubling, Justice Weaver’s personal agenda

causes her to advance arguments—adopted wholesale from Mr. Fieger’s past

disqualification motions—that would lead to nonsensical results, affecting every

judge in Michigan and throwing the justice system into chaos. We have addressed

these arguments on a number of occasions, but we do so again here in light of

Justice Weaver’s unwarranted accusations.

In essence, Justice Weaver would create an environment within this state

that would affect every judge and that would prove utterly untenable. A judge

could run for election, but could not campaign. A judge could be sued, but could

not defend himself or herself. A judge could witness misconduct, but could not

report it. Judges could be removed from cases at the option of attorneys and

litigants, who could instigate public attacks and lawsuits against judges to force

their disqualification. Judges would be intimidated, subtly and not so subtly, from

carrying out their constitutionally ordained duties.

In Justice Weaver’s view, only justices who have received Mr. Fieger's

support—as she has—can decide whether Mr. Fieger’s public statements

(suggesting the sodomization of judges who rule against his client and

characterizing such judges as “assholes”) violate Michigan’s standards of attorney

conduct. Judges who have been the object of his opposition would not be allowed

to participate. It is interesting that Justice Weaver largely grounds her arguments

of “bias and prejudice” in statements that occurred between six and ten years ago.

And, until very late in the process of handling this case, Justice Weaver—who was

well aware of these statements through prior disqualification motions from Mr.

Fieger—did not take the position that those statements required our

disqualification. One can measure the sincerity of Justice Weaver’s accusations

today by her own conduct in this case. She claims today that she was compelled

to publish her belief that our bias disqualifies us to participate in this case because

Mr. Fieger is a “party.” But Mr. Fieger has always been a party in this case.

2

Moreover, in two sets of disqualification motions filed by Mr. Fieger in this case,

not once did Justice Weaver ever state in the statements she filed in response to

those motions that we were disqualified from participating in this case. As late as

last month, when Mr. Fieger’s last motion to disqualify was rejected, Justice

Weaver declined to participate and failed to state that any of the Fieger

accusations she now adopts compelled our disqualification. See Grievance

Administrator v Fieger, 475 Mich 1211 (2006). Nothing has changed since June

1, 2006.

It is deeply troubling that a member of this Court would undertake so

gratuitously, and so falsely, to impugn her colleagues. This is a sad day in this

Court’s history, for Justice Weaver inflicts damage not only on her colleagues, but

also on this Court as an institution. However, we do not intend to be deterred by

false accusations from carrying out our constitutional duty to hear cases, including

those in which Mr. Fieger is involved, and to decide these cases fairly and

evenhandedly, as we have always done in the past. In particular, we invite public

scrutiny of this Court’s record in cases in which Mr. Fieger, personally, and his

clients have been involved.

In making her charges of “bias and prejudice” Justice Weaver essentially

adopts verbatim arguments made by Mr. Fieger in various disqualification motions

that each of us has already considered and rejected. However, in light of Justice

Weaver’s unwarranted characterization of our positions, we explain here why we

did so.

3

I. STATEMENTS CONCERNING MR. FIEGER

Justice Weaver first focuses on statements made during the campaigns of

three of us in 2000. (It is puzzling that Justice Weaver has never before cited

these statements as a basis for our disqualification, given that Mr. Fieger has

repeatedly cited the same statements in earlier disqualification motions that he has

brought since 2000.) None of these statements properly serves as a basis for

disqualifying any of us; indeed, such statements merely reflect the reality of

Michigan’s constitutionally mandated system of democratically electing its

judiciary.

Under our Constitution, candidates for the Supreme Court are nominated at

party conventions and run for election. Const 1963, art 6, § 2. In 1998, Mr.

Fieger ran for Governor of Michigan on the Democrat ticket. As such, in 2000, he

was the most visible member and the titular head of the Michigan Democrat Party,

which was then channeling millions of dollars in opposition to our election

campaigns. Mr. Fieger was outspoken, particularly about his views of our state's

legal and judicial systems, and his statements received a great deal of exposure

through both the media and opposition campaign communications. In addition,

Mr. Fieger himself contributed substantial amounts of money in opposition to our

campaigns while also being highly vocal in his political opposition.

These were Mr. Fieger’s prerogatives. Yet under Justice Weaver’s

analysis, neither we nor our supporters could exercise our own prerogatives to

ever mention these facts in our campaigns. That is, despite our individual

4

judgments that references by our campaigns to Mr. Fieger’s opposition would

assist the public in understanding our judicial positions, and would effectively

contrast these positions with those of the candidates running against us, Justice

Weaver would preclude judicial candidates from communicating truthful

statements to the public. In her view, statements concerning the identity of

political opposition could never be uttered lest a judicial candidate be forever

precluded from hearing cases involving such persons. The public would not

benefit by having less, rather than more, information about a judicial candidate. A

highly visible and outspoken public figure, who is an integral part of the political

opposition to a judicial candidate, cannot be insulated from mention, or even

criticism, in a judicial campaign because he also happens to be a lawyer. Yet this

follows if every such mention, or criticism, of political opposition requires

judicial disqualification. Even more troubling, Justice Weaver’s approach to

disqualification would sharply skew the campaign process. Her approach would

silence judicial candidates criticized by those with regular contact with the legal

system—e.g., lawyers—while permitting forceful responses from judicial

candidates whose opposition comes from different quarters. Justice Weaver

would tie the hands of some—but only some—judicial candidates in defining

themselves and in characterizing their judicial philosophies, not only to the

detriment of those candidates, but to the detriment of the public's ability to

intelligently distinguish between candidates for judicial office.

5

In perhaps her most troubling premise, Justice Weaver suggests that a

judicial candidate is biased with regard to individuals or organizations identified

as opposing his or her candidacy. Yet Justice Weaver fails to recognize that the

reverse would then also be true. Would not a judicial candidate who has received

the public support or endorsement of an individual or organization be, by the same

token, “biased or prejudiced” in favor of those parties? “Bias or prejudice” is not

a one-way street. “Bias or prejudice” can be shown either in favor of or in

opposition to an individual or organization. Judges in this state (including each of

the justices of this Court) who have run for election have sought, and garnered,

support from individuals and organizations, both in the form of financial

assistance and endorsements. Examples of those who have offered support

include labor unions, businesses and business organizations, lawyer organizations,

trade associations, interest groups, prominent citizens, political leaders, and the

like. Moreover, judges in this state (including, again, each of the justices on this

Court) have routinely communicated such support through campaign advertising,

public speeches, newspaper interviews, and fund-raising efforts.1

1

There is no reason why the absence of support or opposition cannot also

be viewed as triggering respectively negative or affirmative “biases or prejudices.”

Surely, for example, if support or opposition from some person or organization

that has traditionally been directed toward a candidate nominated by one political

party does not occur in a particular instance, there is no reason why such a

candidate could not, under Justice Weaver’s analysis, be viewed as “biased or

prejudiced.”

6

Indeed, to apply her own rule to herself, Justice Weaver would certainly be

precluded from participation in the instant case in light of the fact that she received

financial contributions—the most compelling form of all endorsements—from Mr.

Fieger in her most recent campaign. 2

In short, Justice Weaver’s position has far-reaching implications for judicial

selection in Michigan, which the people of this state, through their Constitution,

have placed into the political process. None could contest—and tellingly, Justice

Weaver herself does not contend—that any of the statements she cites in support

of her allegation that we are “bias[ed] and prejudice[d]” was untrue. It shows no

inherent “bias or prejudice” to point out Mr. Fieger’s opposition. Similarly, it

shows no “bias or prejudice” to identify the number of cases Mr. Fieger had on

appeal at the time as a possible explanation for his interest in who sat on this

Court. Such reference states no animus toward him, but only suggests the

obvious: that Mr. Fieger is supporting and opposing candidates at least in part

because he wants judges who will be most philosophically predisposed toward his

2

Justice Weaver dismisses Mr. Fieger’s $400 contribution as “the only

‘support’ that Mr. Fieger gave my campaign committee,” post at 18, as if

somehow a financial contribution does not constitute real support for a judicial

candidate. Moreover, a financial contribution has meaning beyond the dollar

amount. It expresses, in a very public and concrete way, the contributor’s

confidence in the candidate and legitimizes the candidate within the area of the

contributor’s influence; that expression of confidence becomes all the more

meaningful when the contributor enjoys a certain stature or is emblematic of some

point of view. Precisely because of these considerations, Mr. Fieger’s support of

Justice Weaver, and her acceptance and public announcement of that contribution,

communicates far more than simply the dollar amount of the contribution.

7

cases. These statements, in our judgment, as well as identifying whom Mr. Fieger

supported and whom he opposed, were a reasonable way of explaining his active

participation in our campaigns and drawing relevant and comprehensible

distinctions between us and our opponents. In this regard, the United States

Supreme Court has observed:

[O]pposition [to judicial elections] may be well taken (it

certainly had the support of the Founders of the Federal

Government), but the First Amendment does not permit it to achieve

its goal by leaving the principle of elections in place while

preventing candidates from discussing what the elections are about.

“The greater power to dispense with elections altogether does not

include the lesser power to conduct elections under conditions of

state-imposed voter ignorance. If the State chooses to tap the energy

and the legitimizing power of the democratic process, it must accord

the participants in that process . . . the First Amendment rights that

attach to their roles.” [Republican Party of Minnesota v White, 536

US 765, 787-788; 122 S Ct 2528; 153 L Ed 2d 694 (2002).]

In Michigan, and in other states with an elected judiciary and competitive

and well-financed judicial campaigns, statements of the sort referenced by Mr.

Fieger and Justice Weaver must be permissible to help the people make informed

choices among judicial candidates of differing philosophies.

The statements that were made in 2000 were accurate, relevant, and, we

believe, entirely fair commentary on aspects of that year's judicial election. As

was noted in Adair v Michigan, 474 Mich 1027, 1042 (2006) (statement by Taylor,

C.J., and Markman, J.), if a judge does that which the law and the standards of

conduct permit, such action cannot ordinarily serve as the basis for

8

disqualification. To hold otherwise would be to make the law into a “snare” for

those who are operating well within its boundaries.

There is nothing in these statements made in 2000 that would suggest that

Mr. Fieger cannot obtain a fair hearing in our courtroom. We believe that this is

underscored by this Court's treatment of cases in which Mr. Fieger was counsel, as

well as cases in which he was a party himself, over the past seven years. We are

content to maintain Michigan law as it has always been; a judge is not

automatically disqualified from hearing a case involving those who have been

either the judge’s campaign supporters or opponents.

II. “ENMESHMENT” WITH MR. FIEGER

Justice Weaver next focuses on the lawsuits that Mr. Fieger has filed

against us as justices of this Court. Here, Justice Weaver again essentially adopts

verbatim Mr. Fieger's novel theory that a judge becomes “enmeshed” with one

who sues him and that, as a result, that judge necessarily must be tempted to “vent

his spleen” against the person. Under Justice Weaver’s reasoning, a judge

becomes “enmeshed” at the sole option of the person who sues the judge. As one

of us recently wrote in response to Mr. Fieger’s “enmeshment” argument:

[Such “enmeshment” exists] only because [Mr. Fieger] by his

own actions, specifically by initiating a series of federal lawsuits

against me and other Justices of this Court, has so “enmeshed” me.

It cannot be that a judge can be required to disqualify himself or

herself simply on the basis of such lawsuits. Grace v Leitman, 474

Mich 1081 (2006); People v Bero, 168 Mich App 545, 552 [425

NW2d 138] (1988). To allow [Mr. Fieger’s] lawsuits to constitute a

basis for my disqualification because I have thereby become

“enmeshed” with him would simply be to incentivize such lawsuits

9

on the part of any attorney or litigant desirous of excluding a

disfavored judge from participation in his or her case. [Grievance

Administrator v Fieger, 475 Mich 1211, 1212 (2006) (statement by

Markman, J.).]

Moreover, Justice Weaver’s argument that a judge cannot defend himself or

herself against a frivolous lawsuit, or attempt to deter future frivolous lawsuits, by

seeking sanctions when such lawsuits are brought would merely encourage

frivolous lawsuits against judges. Indeed, if anyone can force a judge’s

disqualification merely by suing that judge, then any litigant would have an easy

method of judge-shopping, eliminating disfavored judges until the desired judge

has been obtained. The destructive effect of such a rule is too obvious to require

further elaboration.

In the same “enmeshment” vein, Justice Weaver cites several occasions on

which Mr. Fieger has called us names or impugned us (e.g., “stupid,” never

“practiced law,” has a “political agenda”), and again asserts that this has

predisposed us against him. Again, Justice Weaver’s reasoning makes

disqualification available at the instigator’s sole option. But, it is clearly the law

that a lawyer cannot precipitate a basis for disqualification by being a provocateur.

People v Bero, supra at 552. As one of us wrote earlier in response to Mr. Fieger

when he originally raised this same argument:

[Mr. Fieger] argues that I have been a “target of personal

abuse” from him and cannot be fair toward him. Whatever “abuse”

respondent may or may not have directed toward me, I have never

once called into question the propriety of his conduct. I have never

questioned his right to direct any public criticism toward me or to

undertake any financial contributions against me in the course of my

10

campaigns for judicial office. Once again, it cannot be that a judge

can be required to disqualify himself or herself on the basis of

“abuse” that he has allegedly received from an attorney or litigant.

To allow such conduct to constitute a basis for my disqualification

would again simply be to incentivize such conduct on the part of any

attorney or litigant desirous of excluding a disfavored judge from

participation in his or her case. [Grievance Administrator v Fieger,

supra at 1212 (statement by Markman, J.).]

It may sometimes be the case that, under circumstances such as these, a

judge must conclude that he or she cannot decide a matter impartially. But, for the

first 169 years of this Court’s existence, that decision has always belonged to the

justice alone.

III. LETTER REFERENCING MR. FIEGER

Justice Weaver next focuses on a statement from a fund-raising letter, sent

by former Michigan Governor John Engler, that mentions Mr. Fieger’s name.3

3

The complete letter is as follows:

One of my proudest legacies as Governor was having the

honor of first appointing, then supporting jurists like Justice Maura

Corrigan. Justice Corrigan has worked to recast the Michigan

Supreme Court into a nationally recognized court. Today, the MSC

is one of the most important voices of judicial restraint and limited

government. So esteemed is Justice Corrigan that she has twice

been on President Bush’s short list for the U.S. Supreme Court.

Justice Corrigan was elected to the Michigan Supreme Court

in 1998 and served two terms as Chief Justice from 2001-2004. This

November, she is seeking reelection to another eight-year term.

Justice Corrigan has proven unequivocally by her record that

Michigan will benefit from her continuing service on our state’s

highest court. We must work to retain our best and brightest.

In Michigan, we no longer have a Court where judges think

that it is their prerogative to decide important policy questions. The

(continued…)

11

However, far from showing any “bias or prejudice” on any judge’s part, this letter

again merely bespeaks the reality of our state’s system of democratic judicial

elections. In order for candidates for the Supreme Court to successfully run

statewide campaigns for judicial office, their campaign committees must raise

sufficient funds to pay for campaign advertising and other campaign costs.

Indeed, as this letter indicates, the need for such funds has recently become

substantially more intense. Judicial campaigns have become considerably more

expensive as an increasing range of interest organizations have come to participate

(…continued)

majority on the Court understands the constitutional role of the

judiciary.

Naturally, judicial activists in Michigan have been unhappy

with our Supreme Court. They had grown accustomed to winning

court rulings that they couldn’t achieve through the democratic and

representative process of government. Every time there is a state

Supreme Court election, these activists are on the prowl, seeking to

restore those good old days. This year will be no exception! We

cannot lower our guard should the Fiegers of the trial bar raise and

spend large amounts of money in hopes of altering the election by an

11th hour sneak attack.

I believe our Michigan Supreme Court is truly exceptional.

We simply cannot risk a return to the days of legislating from the

Bench. The court needs to keep Justice Corrigan, a proven,

experienced, and thoughtful jurist. In the past you have contributed

to the Supreme Court race. I ask that you consider making a similar

contribution or as much of the maximum amount allowed by law for

any individual which is $3,400. Please show your support by

sending your contribution today.

Your help in returning Justice Maura Corrigan to the

Michigan Supreme Court will protect the growing reputation of

Michigan’s highest court.

12

in these campaigns, “independent opposition” campaigns have emerged, and

substantial last-minute infusions of opposition campaign spending have appeared,

on one occasion on an anonymous basis.4 In 2004, Mr. Fieger, by his own later

admission in October 2005, orchestrated just such an anonymous campaign days

before the election, spending $460,000 on opposition advertising. Raising money

to address such efforts is a new and critical focus of contemporary judicial

campaigns. The potential for significant, and well-funded, opposition requires

fund-raising to offset the high costs of responding. That a fund-raising letter from

a supporter cites these relevant historical facts in order to make more persuasive a

plea for campaign contributions does not prevent a judge from faithfully

performing his or her sworn duties.

IV. REFERRAL OF MR. FIEGER

Justice Weaver next cites the fact that one of us referred Mr. Fieger to the

Attorney Grievance Commission in 1996. In essence, she faults that justice for

complying with attorney ethics rules. The Michigan Rules of Professional

Conduct provide that:

A lawyer having knowledge that another lawyer has

committed a significant violation of the Rules of Professional

Conduct that raises a substantial question as to that lawyer’s honesty,

4

Moreover, the fact that Mr. Fieger would wish to maintain his anonymity

by failing to report a contribution, as occurred in the 2004 campaign, may suggest

precisely why those who are the targets of his contributions would wish, as

occurred during 2000, to identify Mr. Fieger as a contributor to their opponents.

13

trustworthiness, or fitness as a lawyer shall inform the Attorney

Grievance Commission. [MRPC 8.3(a) (emphasis added).]

In other words, a judge is obligated to inform the Attorney Grievance

Commission about an attorney’s perceived misconduct; to fail to do so is to violate

an explicit ethics rule. This rule does not distinguish between a judge who

observes the alleged misconduct and a judge who is the object of it. But, under

Justice Weaver’s reasoning, a judge must either turn a blind eye to attorney

misconduct or risk disqualification. This simply cannot be. On the contrary, a

judge who meets his or her ethical obligation to report attorney misconduct is not

thereby assumed to be biased or unable to review impartially cases that come

before him or her.5

Additionally, our Court—usually with Justice Weaver’s participation—has

at times directed our clerk of court to refer attorneys to the Attorney Grievance

Commission and judges to the Judicial Tenure Commission for investigation. No

one has ever suggested that this practice, necessary when attorney or judicial

conduct warrants further inquiry, bars justices from later considering either those

5

Moreover, even if, for the sake of argument, an Attorney Grievance

Commission referral may have required a judge's disqualification at some point in

time—which we emphatically believe it does not—the thread running through Mr.

Fieger’s (and Justice Weaver’s) analyses is that, once a judge has ever done

something that may require his or her disqualification—utter a remark six years

ago about a lawyer, refer a lawyer ten years ago to a disciplinary body—this

effectively imposes a lifetime disability on that judge. This is manifestly

incorrect. The proper inquiry is not whether a judge, at some point in time may

have been unable to consider a person’s case impartially, but whether the judge is

presently unable to do so.

14

cases or other cases involving these attorneys or judges. By Justice Weaver’s

logic, because the mere act of referral displays actual bias, justices could never

again sit whenever an attorney’s or a judge’s prior act had warranted a referral for

investigation.

V. FURTHER OBSERVATIONS

(1) Justice Weaver, until late in the consideration of this case, did not

mention what she now cites as evidence of our actual “bias and prejudice,”

statements made during the 2000 campaign. Six years have passed, during which

none of us has made any additional statements concerning Mr. Fieger, and during

which Mr. Fieger has filed numerous disqualification motions in which he has

referenced the same campaign statements from 2000.

(2) In concluding that we have actual “bias and prejudice” toward Mr.

Fieger, Justice Weaver not only professes to read our minds, but intimates that she

does so on the basis of access to information not generally available to the public.

Neither is true.

(3) Justice Weaver here departs from her previous practice in which, in

numerous cases, she adhered to exactly the rule the majority is maintaining—that

a justice resolves his or her own disqualification. In fact, as Justice Weaver

conceded in Advocacy Org for Patients & Providers v Auto Club Ins Ass'n, 472

Mich 91, 96 n 1; 693 NW2d 358 (2005) (Weaver, J., concurring), she herself has

elected not to participate in cases 251 times—a determination reached on each

occasion without the participation of any other justice. As recently as June 1,

15

2006, she declined to decide Mr. Fieger’s motions for disqualification directed at

us in this case, deferring instead to our determinations as the justices targeted by

these motions. Grievance Administrator v Fieger, 475 Mich 1211 (2006)

(statement by Weaver, J.). Without explanation, she now abandons all her

previous practices on this Court and asserts that she may participate in deciding

disqualification motions directed at other justice, at her sole discretion.6 (It is also

noteworthy that Justice Weaver’s particularized concerns about Mr. Fieger’s

disqualification motions began only after Mr. Fieger ceased targeting her with

these motions.)

(4) Justice Weaver’s concerns about alleged “bias and prejudice,” grounded

in large part on statements made in 2000 and a referral to the Attorney Grievance

Commission made in 1996—neither of which has ever before been a concern of

hers—is of a kind with other newfound concerns: (a) after 31 years on the bench,

and, not surprisingly, never having uttered a word in favor of judicial term limits,

and with the four of us having become a philosophical majority on the Court,

Justice Weaver, after announcing her intention to resign, suddenly announces her

6

Moreover, when, on rare occasion, Justice Weaver herself has been the

object of a disqualification motion, as in Graves v Warner Bros, 469 Mich 853,

854 (2003), she has been comfortable to conclude, “I am neither biased nor

prejudiced for or against any of the parties or their attorneys in this case, and

plaintiff asserts no grounds supporting my recusal from participating in this

appeal.” Thus, as long as disqualification motions have been directed against her,

Justice Weaver has been content to conform with the longstanding disqualification

(continued…)

16

intention to not resign, promising to use her position on this Court to garner

legislative support for judicial term limits; (b) after 31 years on the bench, having

never uttered a word concerning the disqualification procedures that this Court has

followed since 1837, and with the four of us having become the exclusive subject

of disqualification motions, overwhelmingly offered by Mr. Fieger, Justice

Weaver has suddenly become a champion of altering disqualification procedures

to make it easier to disqualify a justice for frivolous or political reasons; and (c)

after 31 years on the bench, never having uttered a word about court rules that

specify when judges may participate in cases involving parties that employ

relatives, Justice Weaver suddenly demands a new standard applicable to a select

group of her colleagues.

VI. CONCLUSION

Each of us during our judicial service has sought to follow the highest

standards of ethics and professionalism. We have sought to give faithful meaning

to the law, to decide disputes fairly and impartially, and to approach each case

without bias or prejudice. We are each proud of our records on this Court and, as

long as we serve, are committed to conferring on every attorney and every

litigant—Mr. Fieger not excepted—equal and evenhanded treatment under the

law. And that is exactly what we have done in this case. A judge need not admire

(…continued)

practices of justices of this Court. When, however, such motions are directed

toward other justices, she now advocates that her own involvement is required.

17

an individual, or respect his or her actions, in order to be able to accord the

individual that which every party before this Court deserves—equal justice under

law. We have looked into ourselves, as we must do whenever there is a motion for

disqualification, and indeed even sometimes when there is not, and each of us has

concluded that he or she is able to accord fair and impartial treatment to Mr.

Fieger in this case. We believe that our individual records over the past eight

years in addressing cases concerning Mr. Fieger personally, as well as his clients,

clearly demonstrate this commitment.

The people of Michigan deserve better than they have gotten from Justice

Weaver today, and so do we, her colleagues.

Clifford W. Taylor

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

18

STATE OF MICHIGAN

SUPREME COURT

GRIEVANCE ADMINISTRATOR,

Petitioner-Appellant,

v No. 127547

GEOFFREY N. FIEGER,

Respondent-Appellee.

CAVANAGH, J. (dissenting).

As the Attorney Discipline Board (ADB) has before explained, indeed, in

the context of offensive remarks made by this very respondent,

[f]ew if any members of the Michigan judiciary will be cowed by

such outbursts. . . . [O]ur system of justice is not put at risk if these

statements are not censored. The public and the profession can

express their revulsion at such crudity, while at the same time

feeling pride in belonging to a society that allows its expression. If

we write rules governing speech to quell such antics, then we will

have truly lost our bearings. The judiciary is not so fragile. It is the

First Amendment that needs protection. [Grievance Administrator v

Fieger, ADB No. 94-186-GA, opinion issued September 2, 1997

(Fieger II).]

Such protection has been lost today. The majority not only decides a

question not before it, but, more troubling, its erroneous conclusions mark a

sweeping expansion of the Michigan Rules of Professional Conduct. This

expansion precipitates serious constitutional implications and, despite the

majority’s protestations to the contrary, does in fact impermissibly exalt the

protection of judges’ feelings over the sanctity of the First Amendment’s

guarantee of freedom of speech. Thus, I respectfully dissent.

I. The ADB Did Not Declare the Relevant Rules of Professional Conduct

Unconstitutional, So the Issue Is Not Ripe For Review

Although this Court granted leave to consider whether the ADB can

declare a rule of professional conduct unconstitutional, that issue is not ripe for

review because the ADB did not declare a rule unconstitutional, a majority of the

ADB did not opine that it had the authority to do so, and the ADB’s dismissal of

the complaint against respondent was not premised on the purported

unconstitutionality of a rule. Thus, the majority errs in addressing this question.

In deciding respondent’s appeal, the ADB issued a splintered opinion.

Three of the eight participating board members wrote that respondent’s conduct

did not fall within the cited rules of professional conduct because the comments

were not made “to” or “in” the tribunal. Framing it as an alternative basis for its

holding, the lead opinion reasoned that the rules should be read narrowly to avoid

constitutional problems. The lead opinion stated that even if remarks made

outside the context of a pending case were actionable, the rules did not

sufficiently inform a person “what statements might be deemed impermissibly

discourteous or disrespectful by the Attorney Grievance Commission, or by a

hearing panel, or this Board.”

Two members concurred in part and dissented in part. They wrote that the

rules did encompass respondent’s statements, but the First Amendment protected

2

his right to make those statements. The three remaining members dissented,

opining that the rules were constitutional and that respondent violated them.

Thus, there is no need to answer the question into which the majority

delves because the ADB neither declared the rules unconstitutional nor purported

authority to do so. Rather, the ADB’s lead opinion first held that the rules did not

cover respondent’s comments. Only then did it mention the constitutional

aspects of the rules, but instead of declaring the rules unconstitutional, it merely

held that because of the constitutional principles of free speech, the rules should

be read narrowly. It then concluded that under a narrow reading, respondent’s

comments did not violate the rules. Of course, this view did not garner a

majority, and respondent was only vindicated because two of the five remaining

board members believed that respondent’s comments were protected by the First

Amendment. But the true disagreement between those two factions was over

whether respondent’s conduct was even covered by the rules, not over whether

the rules themselves were unconstitutional.1 In other words, the rules survived

the ADB’s decision—the board did not purport to invalidate them. As such, any

opinion by this Court regarding the ADB’s power to declare rules of professional

1

According to the majority, this is “tantamount” to declaring the rules

unconstitutional. Ante at 6 n 6. This is a bizarre notion to say the least. A holding

that the Constitution prohibits the board from punishing this respondent’s conduct

is, of course, in no way an excoriation of the rules. Rather, the board simply

found that the rules, interpreted in light of constitutional principles, could not be

applied to this respondent’s conduct. The majority takes a severely contorted view

of the ADB’s opinions to justify reaching this issue and, by doing so,

troublesomely dilutes the doctrine of ripeness.

3

conduct unconstitutional is purely advisory in nature and outside the bounds of

our constitutionally imposed duty.

Nonetheless, because the majority persists in issuing its statement on this

matter, it is necessary to illuminate the error in the majority’s analysis, which

analysis asserts that the ADB lacks the authority to render a rule unconstitutional.

In carrying out our duty to regulate the legal profession in the state of Michigan,

see Const 1963, art 6, § 5 and MCL 600.904, we created a governing body that

operates as a court system reserved for attorney disciplinary matters, and which

mirrors the ordinary trial and appellate system. See MCR 9.101 et seq. The

attorney discipline system consists of a prosecutorial component (the Attorney

Grievance Commission [AGC]), MCR 9.108; hearing panels composed of

members who act as judges by conducting public, trial-like proceedings during

which they receive evidence and after which they render any necessary

discipline, MCR 9.111; and a review board (the ADB), which fulfills the judge-

like appellate function should an attorney dispute a disciplinary order of a hearing

panel, MCR 9.110.

Notably, MCR 9.110(A) describes the authority we bestowed on the ADB

as follows: “The Attorney Discipline Board is the adjudicative arm of the

Supreme Court for discharge of its exclusive constitutional responsibility to

supervise and discipline Michigan attorneys.” (Emphasis added.) The ADB is

further charged with disciplining attorneys, MCR 9.110(E)(5), suspending and

4

disbarring attorneys, MCR 9.110(E)(6), and reviewing the AGC’s final orders of

discipline, MCR 9.110(E)(4).

It is indisputable, as Justice Kelly points out, that this Court is vested with

authority to declare enactments unconstitutional. And it appears from the plain

language of the court rule that we have delegated this power to the ADB. When

we charged the AGC with “discharg[ing our] constitutional responsibility,” we

listed no restrictions in this delegation of power. And, importantly, it seems that

had we intended to limit the delegation accordingly, we would have explicitly

reserved that power unto ourselves when we undertook the task of delegating our

constitutional power to another entity, which task was certainly not taken lightly.

Further, it makes little sense to charge the disciplinary board with carrying

out this Court’s duties and requiring it to discipline attorneys, reinstate them, and

review final orders of discipline and dismissal in an appellate function without

the benefit of deciding constitutional issues raised in that process. We have

certainly not restricted trial or appellate courts from declaring enactments

unconstitutional, and such rulings are always subject to this Court’s review, just

as are decisions regarding attorney discipline. Moreover, the fact that we created

the attorney disciplinary rules or that there are nonattorneys on the ADB is of no

moment—this Court remains the final authority on any action the ADB takes,

and we can overturn any of its decisions we perceive as erroneous.

In carrying out its duties, and to render a just and complete decision, it is

only logical that the ADB consider any and all arguments an attorney raises in his

5

or her defense. And constitutional issues will inevitably be raised during the

attorney disciplinary process. Petitioner’s assertion that the board can consider

constitutional principles in its decision-making process, but is nonetheless

restricted from finding a rule unconstitutional, is an odd one indeed. This would

require our adjudicative arm, to which we gave full charge, to consider only half

the question. This Court simply did not restrict the ADB in that way.

In any event, as already discussed, the board did not declare any rule

unconstitutional. Rather, it merely considered the constitutional issues

respondent raised and construed the rules narrowly in light of those principles, an

exercise that the Grievance Administrator acknowledges is permitted. As the

Sixth Circuit Court of Appeals has observed:

Even if the Board could not declare a Rule of Professional

Conduct unconstitutional—a proposition about which we are not

convinced—“it would seem an unusual doctrine, and one not

supported by the cited case[s], to say that the [Board] could not

construe [the Rules of Professional Conduct] in the light of federal

constitutional principles.” Ohio Civil Rights Comm’n v. Dayton

Christian Sch., 477 U.S. 619, 629, 106 S.Ct. 2718, 91 L.Ed.2d 512

(1986). The Board could, short of declaring a Rule unconstitutional,

refuse to enforce it or, perhaps, narrowly construe it. [Fieger v

Thomas, 74 F3d 740, 747 (CA 6, 1996).]

Thus, the ADB’s actions were within its authority.

Moreover, for the reasons explained by Justice Kelly, the majority’s

reliance on Wikman v Novi, 413 Mich 617; 322 NW2d 103 (1982), Lewis v

Michigan, 464 Mich 781; 629 NW2d 868 (2001), and Const 1963, art 3, § 2 are

entirely misplaced because none of those authorities compels the majority’s

result.

6

Although, again, the question is not ripe, the majority errs in finding a

restriction on the Court’s power to delegate constitutional power and in holding

that the ADB cannot declare a rule of professional conduct unconstitutional. The

majority proffers no persuasive authority to justify its holding. Rather,

considering that this Court created the ADB, delegated to it the power to carry

out our duty of maintaining discipline in the legal profession, and did not

otherwise restrict its authority, it should logically follow that the ADB can both

consider constitutional questions and declare a rule of professional conduct

unconstitutional.

II. Respondent’s Speech Did Not Violate the Rules of Professional Conduct

Under Which He Was Charged

The lead opinion of the ADB correctly concluded that respondent’s public,

out-of-court comments, made after the conclusion of the case about which he

spoke, did not violate either Rule 3.5(c) or 6.5(a) of the Michigan Rules of

Professional Conduct. The rules alleged to be violated simply do not prohibit the

type of speech at issue in this case. The majority’s conclusions to the contrary

are reached haphazardly and without any regard for the plain language, history,

or context of the rules. In a melodramatic fashion, the majority misrepresents

respondent as arguing that “there can be no courtesy or civility rules at all of this

sort,” ante at 8, and the dissents as arguing for a “repudiation of ‘courtesy’ and

‘civility’ rules,” ante at 33. Further, the majority loftily declares that the “respect

for the wisdom of those who have preceded us in the judiciary in this country and

the traditions of the legal process counsel that narrow and carefully tailored

7

regulations of the sort set forth in MRPC 3.5(c) and MRPC 6.5(a) are necessary

adjuncts to a responsible legal system,” ante at 9 (emphasis added), but then

proceeds to interpret these rules with a brush so broad as to now encompass any

offensive language used to criticize a judge. The majority’s troublesome

expansion of those rules impermissibly silences harsh criticism of the judiciary

about a concluded case, thus invading the purview of the First Amendment’s

guarantee of the right to speak freely.

A. Respondent Did Not Violate MRPC 3.5(c) Because His Comments Were Not

Made “Toward The Tribunal”

MRPC 3.5(c) restrains attorneys from “engag[ing] in undignified or

discourteous conduct toward the tribunal.” At the core of the arguments here is

the interpretation of the phrase “toward the tribunal.” As is evident from the

context of this rule, its historical evolution, and its plain language, this phrase

pertains only to conduct that occurs in a tribunal or in the immediate environs of

a tribunal, such as in judicial chambers.2 Because respondent did not make his

comments in that setting, but, rather, made them during a radio broadcast, he did

not violate the rule.

While respondent does not appear to argue that his comments were

particularly dignified or courteous, the crux of this rule is to prevent such

2

A Texas court’s description is also useful. There, contemptuous behavior

is not permitted “in open court, or at least while the court was actively pursuing

the business of dispensing justice in its immediate environs.” In re Bell, 894

SW2d 119, 130 (Tex Spec Ct Rev, 1995).

8

comments in or in the immediate environs of a tribunal, not at any time or in any

space. In other words, conduct in or near a courtroom, such as conduct in

judicial chambers or possibly comments made in pleadings filed with the court

can be said to be conduct “toward” the tribunal. The majority’s removal of the

proximate element of this rule does indeed result in “protecting the sensitivities

of judges,” ante at 9, while at the same time raising grave constitutional

implications by restricting a lawyer’s ability to speak outside the context of a

judicial proceeding.3 See part III of this opinion. Further, contrary to the

majority’s assertion otherwise, such a broad expansion of the rule can and will

preclude criticism of the “most robust character,” ante at 13, because it will

prohibit attorneys from commenting on legal proceedings of which they have

been a part. Notwithstanding the indisputable ability of this Court to prescribe

ethical and disciplinary rules, see ante at 7-13, the majority’s myopic focus on

what we are permitted to do in the abstract eclipses the more critical question

whether this particular ethics rule was crafted to apply to this particular conduct.

3

Out of the multiple entries under “toward” in a dictionary, the majority

selects the two definitions that it perceives as useful to its conclusion. This

ignores, first, that there are other definitions of “toward” that do not support its

conclusion and, second, that there are a substantial number of other sources and

considerations that assist us with determining the scope of the ethics rule at issue.

Notably, the majority’s analysis unhelpfully ends with its selective citation of the

first and fourth entries under “toward.” See ante at 18. Further, discriminating

readers will recognize that the majority’s choice to use the definition “in the

direction of” to support its conclusion is nothing but a truly strained application.

9

MRPC 3.5(c) was designed, as is evident from the placement of the rule in

the entire set of professional conduct rules, a historic examination of the rule, and

the way the rule has been applied, to control the conduct of attorneys in their

interactions with the tribunal in their role as advocates for clients, not the conduct

or speech of attorneys far removed from the tribunal and the advocatory process.

The Michigan Rules of Professional Conduct are divided into eight chapters, each

with a descriptive title. Within those chapters, each rule also has a descriptive

heading. Notably, Rule 3.5(c) appears in chapter 3, entitled “Advocate,” and has

a heading entitled “Impartiality and Decorum of the Tribunal.”4 This

arrangement is but the first indication that the rules within chapter 3 are meant to

govern attorneys in their active role as advocates and that the rules within the

subsections of Rule 3.5 are directed toward behavior that affects the decorum of

the forum involved, which in turn connotes a required nexus between the conduct

and the actual forum.

In keeping with that theme, the other two subsections of Rule 3.5 prohibit

an attorney from seeking to influence judges, jurors, prospective jurors, or other

officials, MRPC 3.5(a), and prohibit ex parte communications, MRPC 3.5(b).

And the remaining provisions in chapter 3 governing the attorney as advocate

clearly pertain to an attorney’s direct dealings with the court system and the

4

For comparison purposes, the remaining chapters are “Client-Lawyer

Relationship,” “Counselor,” “Transactions With Persons Other Than Clients,”

“Law Firms and Associations,” “Public Service,” “Information About Legal

Services,” and “Maintaining the Integrity of the Profession.”

10

dispensation of justice. Those rules are headed “Meritorious Claims and

Contentions,” “Expediting Litigation,” “Candor Toward the Tribunal,” “Fairness

to Opposing Party and Counsel,” “Trial Publicity,” “Lawyer as Witness,”

“Special Responsibilities of a Prosecutor,” and “Advocate in Nonadjudicative

Proceedings.” None of these rules, by its heading or its content, purports to

govern conduct that is unrelated to a potential or ongoing proceeding before a

tribunal.

Importantly, the rules appearing in other chapters of the Michigan Rules of

Professional Conduct do govern the conduct of attorneys outside of a tribunal.

Specifically, chapter 8, “Maintaining The Integrity of the Profession,” contains

two rules that are eminently more suited to curtailing the speech of attorneys

outside the context of a legal proceeding than MRPC 3.5(c). For instance, MRPC

8.2(a) forbids an attorney from making “a statement that the lawyer knows to be

false or with reckless disregard as to its truth or falsity concerning the

qualifications or integrity of a judge, adjudicative officer, or public legal officer,

or of a candidate for election or appointment to judicial or legal office.” And

MRPC 8.4, which sets forth the rules regarding “Misconduct,” expressly forbids

attorneys from engaging in behavior “that is prejudicial to the administration of

justice[.]” MRPC 8.4(c). It would be difficult to say that the broad sweep of

MRPC 8.2 and 8.4 does not extend to conduct that shares no physical nexus with

a tribunal. In fact, instances too numerous to mention here exist in which an

attorney who acted questionably outside the context of a tribunal was charged

11

with violating the rules of chapter 8, but, notably, not Rule 3.5(c). Clearly, then,

comments about judges made outside the context of a tribunal are governed

elsewhere in the rules, lending further credence to the conclusion that the more

precise scope of Rule 3.5(c) encompasses only behavior in or in connection with

a tribunal.

Moreover, the comment accompanying this rule sustains the conclusion

that the rule is directed only toward conduct that occurs in the tribunal or in the

immediate environment of a tribunal.5 The comment on MRPC 3.5 states as

follows:

Many forms of improper influence upon a tribunal are

proscribed by criminal law. Others are specified in the Michigan

Code of Judicial Conduct, with which an advocate should be

familiar. . . .

The advocate’s function is to present evidence and argument

so that the cause may be decided according to law. Refraining from

undignified or discourteous conduct is a corollary of the advocate’s

right to speak on behalf of litigants. A lawyer may stand firm

against abuse by a judge, but should avoid reciprocation; the judge’s

default is no justification for similar dereliction by an advocate. An

advocate can present the cause, protect the record for subsequent

review, and preserve professional integrity by patient firmness no

less effectively than by belligerence or theatrics.

Clearly, this comment envisions conduct in the context of tribunal

proceedings. The comment speaks of “improper[ly] influenc[ing a] tribunal,”

“present[ing] evidence and argument,” deciding a case, “speak[ing] on behalf of

5

The comments on the Michigan Rules of Professional Conduct were

written by Supreme Court staff and are an “aid to the reader” in determining the

(continued…)

12

litigants,” “stand[ing] firm against abuse by a judge,” “present[ing] the cause,”

“protect[ing] the record for . . . review,” and using patience in place of

“belligerence” and “theatrics.” Each of these phrases is clearly connected with

tribunal behavior or behavior with respect to an ongoing proceeding (see Rule

3.5[a], which governs improper influence, and Rule 3.5[b], which prohibits ex

parte communication), and the comment does not refer to, and cannot be

interpreted to govern, attorney conduct that occurs outside the context of a

tribunal proceeding or the tribunal itself.

Further, when interpreting MRPC 3.5(c), the rule’s genesis, which can be

traced to the American Bar Association’s (ABA) former Model Code of

Professional Responsibility Rule 7-106(C)(6), is also instructive. That rule,

tellingly titled “Trial Conduct,” provided that “[i]n appearing in his professional

capacity before a tribunal, a lawyer shall not . . . [e]ngage in undignified or

discourteous conduct which is degrading to a tribunal.” Our former disciplinary

rule, DR 7-106(C)(6), was identical. Subsequently, the ABA instituted its Model

Rules of Professional Conduct, retaining the following concept from DR 7-

106(C)(6): “A lawyer shall not . . . engage in conduct intended to disrupt a

(…continued)

meaning of the rules. See Grievance Administrator v Deutch, 455 Mich 149, 164

n 15; 565 NW2d 369 (1997).

13

tribunal.” ABA Model Rule 3.5(d).6 We also replaced our former disciplinary

code with rules of professional conduct, and our current MRPC 3.5(c) was

fashioned from the new ABA rule as well as the corresponding former

disciplinary rules. But despite minor wording changes to the rule, nothing about

the current wording of the rule (“toward the tribunal”) nor its placement within

the rules (under the “Advocate” chapter) suggests any intent of this Court to

broaden the scope of the rule to situations beyond the context of tribunal

proceedings.

As Justice Kelly explains, the revisions to MRPC 3.5(c), which deviated

from the ABA’s revisions to its similar rule, merely eliminated the inquiry into an

attorney’s intent that the ABA retained. Our rule instead focuses purely on

whether the conduct can be said to be “undignified” or “discourteous,” without

respect to whether the lawyer intended it to be so. But both our rule and the

ABA’s rule contextually and textually preserved the condition that, to be

punishable, the conduct must occur in a tribunal or its immediate environs. The

overwhelming contextual evidence of this nexus is the placement of both rules

among other rules governing conduct in a tribunal or its environs and under

chapter headings referring to the decorum of a tribunal. And the textual evidence

6

The comment on the ABA’s rule is similar to that concerning our own

rule, although it takes the additional step of explaining that conduct during a

deposition is also regulated by the rule.

14

of the nexus derives from the ABA’s language, “disrupt a tribunal,” and the

Michigan rule’s language, “toward a tribunal.”

Of course, it is also important to remark that there has been no warning to

the bar that the transformation of DR 7-106(C)(6) into MRPC 3.5(c) allegedly

served to extend the reach of the latter to conduct occurring outside a tribunal and

removed from the active legal process. Although there is compelling evidence

that the new rule was not, in fact, so extended, to the extent that any gray area

exists, it is preferable to resolve the question most favorably to respondent. See

State Bar Grievance Administrator v Corace, 390 Mich 419, 434; 213 NW2d 124

(1973). The inherent fairness of this approach not only is self-evident, but also

serves to avoid any precarious trespass over the boundaries of the First

Amendment by requiring notice of what type of conduct will be prohibited before

punishing it.7

7

Due process requires a person to have notice of conduct that is prohibited,

and lack of notice can render an enactment unconstitutionally vague. See, e.g.,

United States v Wunsch, 84 F3d 1110, 1119 (CA 9, 1996) (declaring the term

“offensive personality” too vague to inform a reasonable attorney what conduct

will be sanctioned). The reader is referred to Justice Kelly’s dissent for a fuller

explanation of vagueness. But rules of professional conduct that teeter on the edge

of vagueness have been saved when it can be said that although the language

would ordinarily be too vague to pass constitutional muster, it has been subject to

enough interpretation that it provides the notice that is not inherent in the language

itself. See, e.g., In re Frerichs, 238 NW2d 764 (Iowa, 1976); In re Beaver, 181

Wis 2d 12; 510 NW2d 129 (1994). See also Comm on Legal Ethics of the West

Virginia State Bar v Douglas, 179 W Va 490; 370 SE2d 325 (1988). In Douglas,

the court was faced with an attorney who posed for a newspaper photograph

dressed as Rambo, complete with bow and arrow, a knife, and ammunition, above

a caption that read, “‘Just like Rambo I’ll defend against the judges alone if

necessary.’” Id. at 492. In an article, he was quoted as saying, among other

(continued…)

15

Significantly, this Court has not had occasion to interpret MRPC 3.5(c) in

its present form before today. Nor has research revealed any ethics opinions

regarding this rule—save, critically, one. That ethics opinion involved this same

respondent who found himself in quite the same situation as the present case.

Fieger II, supra. There, it was claimed that respondent publicly made

“knowingly false or reckless statements about various judges and a county

prosecutor,” and he was likewise charged with violating MRPC 3.5(c), along

with other rules. Both the hearing panel and the ADB refused to find that

respondent’s statements violated Rule 3.5(c). The ADB agreed with the panel’s

finding that Rule 3.5(c) is intended to govern only conduct directed to the

tribunal in a pending matter. The panel had found that because respondent’s

comments were made “about judges, and not to them in pending matters,”

respondent had not violated the rule. The ADB agreed, concluding as follows:

We agree with the panel that the intent of the rule is to

preserve the decorum of the tribunal so that proceedings may be

conducted in an orderly fashion. Rude and undignified behavior can

detract from the respect an adjudicator must possess in order to

(…continued)

things, that the judges were “‘power-jockeying,’” that they “‘drew first blood,’”

and “that he would ‘rise to the challenge.’” Id. The attorney also compared the

ongoing trial proceeding to the Salem witch trials. Id. at 492 n 6. Afterward, he

was charged with violating the disciplinary rule prohibiting conduct prejudicial to

the administration of justice. Although the court recognized that this language had

been routinely upheld as constitutionally sufficient, id. at 493, it reasoned that

because the complexities of the subject had not been thoroughly analyzed in that

state, neither the committee nor the parties had enough guidance to decide the

matter, id. at 498. After providing that guidance, the court remanded the case for

further consideration.

16

effectively manage a courtroom. The rule is obviously directed at

preventing proceedings from devolving into chaos because of lack of

respect for the judge. [Fieger II, supra at 31.]

Thus, respondent has already been subject to disciplinary proceedings for

speaking out publicly in criticism of the judiciary. Yet he was explicitly absolved

of the allegation that public comments about judges violated Rule 3.5(c) by both

the hearing panel and the review board. And we denied the Grievance

Administrator’s application for leave to appeal that decision. 469 Mich 1241

(2003).8 Today, the majority abruptly changes the rule using a cursory and

incomplete analysis that pays no heed to history, context, or even plain text.

Those who admire the majority for its professed adherence to textualism may be

surprised. Respondent probably will not be.

Under a scrupulous reading of the rule and the comment, and considering

their evolution, there should be no other conclusion but that the rule governs only

conduct that occurs in or near the tribunal in the context of litigation.

Respondent’s comments, made during a radio broadcast, were not made in a

8

As the majority points out, I concurred in the denial of leave, but wrote a

statement to convey my belief that respondent’s remarks were at the edge of what

types of remarks might merit sanction. It is important to note, however, that the

statements in that case were allegedly libelous or slanderous, which calls for an

entirely different analysis than the one required in this case. Comments with no

hint of libel or slander, such as the ones at issue here, are in a different, and more

protected, category of speech. Thus, I still believe that the order in that case

should not be construed “as signaling any reduced interest on the part of this Court

in upholding standards of professional civility . . . .” See 469 Mich at 1241

(Cavanagh, J., concurring). However, the comments in this case, which cannot be

remotely characterized as libel or slander, merit even more protection than those

(continued…)

17

tribunal, near a tribunal, or in any context remotely related to the litigation

process or the dispensation of justice. As such, just as respondent did not violate

Rule 3.5(c) in Fieger II, he did not violate it in this case.

Justice Kelly also correctly points out the deficiency in the majority’s

assertion that limiting the rule’s application to tribunal environs would make the

rule “superfluous” in light of a trial court’s contempt powers. See ante at 19-20;

MCL 600.1711(1). The most flagrant error in the majority’s assertion is its

obliviousness to the fact that Rule 3.5(c) applies not just to courts and

courtrooms, but to all tribunals. Only courts have contempt power. Thus,

because not all “tribunals” have contempt power, the disciplinary rule is in no

way duplicative of the contempt statute.

Moreover, MRPC 3.5(c), like the rule from which it was adopted, “carries

with it the option of a disciplinary sanction as a supplement to the traditional

power of judges to punish disruptive behavior as contempt of court.” Office of

Disciplinary Counsel v Breiner, 89 Hawaii 167, 173; 969 P2d 1285 (1999)

(emphasis added), citing 1 Hazard & Hodes, The Law of Lawyering: A

Handbook on the Model Rules of Professional Conduct, § 3.5:401 (2d ed).

Further, because only a court has contempt powers, MRPC 3.5(c) provides an

avenue for others who may be offended by an attorney’s conduct to seek redress

(…continued)

made in Fieger II. Thus, to the extent that I believed the statements in Fieger II

were not sanctionable, that is all the more my belief in this case.

18

by filing a grievance. And MRPC 3.5(c) allows the body charged with regulating

attorney conduct to impose a far more consequential range of discipline on an

attorney for violating the rule, from public censure to disbarment. Thus, the rule

is in no way rendered “superfluous” by MCL 600.1711(1), and the majority’s

contention otherwise is irrational.

And I, like Justice Kelly, dispute the majority’s assertion that construing

MRPC 3.5(c) to limit its application to tribunals “fails to accord consideration to

the importance the courtesy and civility rules serve as a vehicle for preserving the

public’s confidence in the integrity of the legal process.” See ante at 20. “[A]n

enforced silence, however limited, solely in the name of preserving the dignity of

the bench, would probably engender resentment, suspicion, and contempt much

more than it would enhance respect.” Bridges v California, 314 US 252, 270-

271; 62 S Ct 190; 86 L Ed 192 (1941).

Read in its proper context, which the majority’s conclusory analysis fails

to do, it is evident that MRPC 3.5(c) applies only to statements and conduct in a

tribunal or its immediate environs. Had this Court intended its changes to this

rule, which before indisputably governed conduct in a tribunal, to broadly expand

the rule to prohibit statements about tribunals, it would have used the phrase

“about a tribunal.” And, undoubtedly, such a broad expansion, with such

weighty constitutional implications, would have been widely noticed, discussed

within the bar, and probably challenged long before now. But this Court did not

expand the rule in that manner, as is clear under any fair analysis. Such a change

19

was not needed because other rules govern conduct that occurs elsewhere.

Because respondent’s comments were far removed from the setting to which the

rule applies, he did not violate it.

B. Respondent Did Not Violate MRPC 6.5(a) Because He Did Not “Treat” the

Judges with Discourtesy by Criticizing Their Decision

Respondent correctly contends that his conduct did not violate MRPC

6.5(a) because the rule does not apply to “a lawyer’s out-of-court, public

criticism of the judiciary.” The rule states as follows:

A lawyer shall treat with courtesy and respect all persons

involved in the legal process. A lawyer shall take particular care to

avoid treating such a person discourteously or disrespectfully

because of the person’s race, gender, or other protected personal

characteristic. To the extent possible, a lawyer shall require

subordinate lawyers and nonlawyer assistants to provide such

courteous and respectful treatment.

An issue similar to that discussed with respect to Rule 3.5(c) inheres in

this rule. Specifically, just as Rule 3.5(c) contemplates conduct in a courtroom,

Rule 6.5(a) is attendant to lawyers’ interactions with clients and others with

whom the lawyer comes into contact in the course of the legal process. Both the

comment to this rule, which illuminates the overarching principles behind the

rule’s requirements, and the consistent way in which the rule has been applied,

support this conclusion. In relevant part, the comment states:

A lawyer is an officer of the court who has sworn to uphold

the federal and state constitutions, to proceed only by means that are

truthful and honorable, and to avoid offensive personality. It follows

that such a professional must treat clients and third persons with

courtesy and respect. For many citizens, contact with a lawyer is the

first or only contact with the legal system. Respect for law and for

legal institutions is diminished whenever a lawyer neglects the

20

obligation to treat persons properly. It is increased when the

obligation is met.

A lawyer must pursue a client’s interests with diligence. This

often requires the lawyer to frame questions and statements in bold

and direct terms. The obligation to treat persons with courtesy and

respect is not inconsistent with the lawyer’s right, where appropriate,

to speak and write bluntly. Obviously, it is not possible to formulate

a rule that will clearly divide what is properly challenging from what

is impermissibly rude. A lawyer’s professional judgment must be

employed here with care and discretion.

* * *

A judge must act “[a]t all times” in a manner that promotes

public confidence in the impartiality of the judiciary. Canon 2(B) of

the Code of Judicial Conduct. See also Canon 5. By contrast, a

lawyer’s private conduct is largely beyond the scope of these rules.

See Rule 8.4. However, a lawyer’s private conduct should not cast

doubt on the lawyer’s commitment to equal justice under the law.

[Emphasis added.]

Again, it is clear from the comment that Rule 6.5(a) is circumscribed to an

attorney’s treatment of persons with whom the attorney encounters in the legal

process. This, of course, accords with the rule’s usage of the term “treat.”

“Treat” means “[t]o act or behave in a specified manner toward.” The American

Heritage Dictionary, New College Edition (1981). Just as respondent did not

conduct himself “toward” the tribunal for purposes of Rule 3.5(c), he likewise did

not conduct himself “toward” the tribunal for purposes of Rule 6.5(a). To hold

otherwise contorts the plain meaning of the word “treat” and culminates in the

curious conclusion that when a person speaks disrespectfully about another

person outside that other person’s presence, the speaker is somehow “treating”

that person in a certain manner.

21

Indeed, our disciplinary arm has sharply limited its application of the rule

to instances of direct contact and has neither interpreted nor applied the rule in

any other manner. Violations of the rule have been found only in instances of,

for example, improper sexual conduct, Grievance Administrator v Neff, ADB No.

95-94-GA, notice of suspension issued April 30, 1996; Grievance Administrator

v Bowman, ADB No. 95-95-GA, notice of reprimand issued January 3, 1996;

Grievance Administrator v Childress, ADB No. 95-146-GA, notice of suspension

issued December 6, 1996; Grievance Administrator v Childress, ADB Nos. 97-

169-GA and 97-183-FA, notice of suspension issued June 9, 1998; Grievance

Administrator v Williams, ADB No. 98-203-GA, notice of suspension issued

February 1, 2000; Grievance Administrator v Gold, ADB No. 99-350-GA,

opinion issued May 16, 2002; Grievance Administrator v Kohler, ADB No. 01-

49-GA, notice of suspension issued December 10, 2001; physical altercations

with opposing counsel, Grievance Administrator v Lakin, ADB No. 96-166-GA,

notice of reprimand issued November 13, 1997; Grievance Administrator v

Golden, ADB No. 96-269-GA, opinion issued May 14, 1999; Grievance

Administrator v McKeen, ADB No. 00-61-GA, opinion issued May 7, 2003;

vulgar and profane comments that interfered with a deposition, Grievance

Administrator v Farrell, ADB No. 95-244-GA, notice of reprimand issued

December 3, 1996; and threatening statements made directly to another person,

Grievance Administrator v Warren, ADB No. 01-16-GA, opinion issued October

2, 2003; Grievance Administrator v Sloan, ADB Nos. 98-106-GA and 98-176-

22

GA, notice of suspension issued April 1, 1999. Further, in some instances in

which the only conduct at issue was name-calling in the course of direct

communication, the rule was found not to be violated. See, e.g., Grievance

Administrator v Szabo, ADB No. 96-228-GA, opinion issued February 11, 1998;

Grievance Administrator v MacDonald, ADB No. 00-4-GA, opinion issued

January 25, 2001.

As the lead opinion of the ADB correctly observed:

MRPC 6.5(a), like MRPC 3.5(c), seems clearly to extend to

discourtesy toward and disrespect of participants in the legal system

when such conduct interferes or has the potential to interfere with

the orderly administration of justice. To apply this rule in this case,

we would have to hold that “treat” means to make comments about a

person outside their [sic] presence, after the conclusion of the

proceedings. This would sweep in any comment critical of a

participant’s role in the justice system even after that role had been

concluded. In this country, many trials or other proceedings are

subject to discussion and analysis after their conclusion. Nothing in

Rule 6.5 suggests that “persons involved in the legal process” may

not ever be criticized for their role in that process, not even after the

involvement has ceased.

Nor is the majority’s treatise on our duty to oversee the legal profession

and foster rules geared toward maintaining respect for the judiciary persuasive

justification for the broad-reaching interpretation it adopts. As the United States

Supreme Court has explained:

We recognize the importance of leaving States free to select

their own bars, but it is equally important that the State not exercise

this power in an arbitrary or discriminatory manner nor in such way

as to impinge on the freedom of political expression or association.

A bar composed of lawyers of good character is a worthy objective

but it is unnecessary to sacrifice vital freedoms in order to obtain

that goal. It is also important both to society and the bar itself that

lawyers be unintimidated—free to think, speak, and act as members

23

of an Independent Bar. [Konigsberg v State Bar of California, 353

US 252, 273; 77 S Ct 722; 1 L Ed 2d 810 (1957).]

Further, as we explained in In re Chmura, 461 Mich 517, 540; 608 NW2d

31 (2000), “the state’s interest in preserving public confidence in the judiciary

does not support the sweeping restraints imposed by Canon 7(B)(1)(d).”9

Likewise here, the directive of Rule 6.5(a) that attorneys must treat others

involved in the legal process with courtesy and respect cannot be interpreted as a

sweeping restraint on attorney comment regarding concluded cases.

Reading the rule in its proper context and affording the term “treat” its

common and ordinary meaning, it is again clear that respondent, by his

comments, did not “treat” anyone involved in the legal process. Rather, his

comments were permitted public criticism of Court of Appeals judges. Just as is

the case with Rule 3.5(c), an interpretation of this rule that enlarges the realm of

sanction to public criticism unrelated to the process of administering justice

treads dangerously in the waters of the First Amendment’s protections of free

speech. Respondent’s speech was not prohibited by Rule 6.5(a) and cannot be

found to have violated it.

C. Respondent’s Comments Did Not Pertain to a Pending Case, Further

Diminishing Any Justification For Expanding Rules 3.5(c) and 6.5(a) Beyond

Their Intended Meanings

9

That canon prohibited candidates for judicial office from using any form

of communication that the candidate knew or reasonably should have known was

false, fraudulent, misleading, or deceptive or that contained a misrepresentation,

omitted certain facts, or created unjustified expectations.

24

The majority observes that restraints on speech can be more encompassing

if the speech pertains to an ongoing matter. See ante at 15; Gentile v State Bar of

Nevada, 501 US 1030, 1070; 111 S Ct 2720; 115 L Ed 2d 888 (1991). It

concludes that the matter about which respondent spoke (Badalamenti v William

Beaumont Hosp-Troy, 237 Mich App 278; 602 NW2d 854 [1999]) was indeed

pending and posits that this justified stricter curtailment of respondent’s right to

speak publicly about it. Notwithstanding that the rules did not apply to

respondent because they were not comments “toward” the tribunal and

respondent did not “treat” the tribunal discourteously, the majority is quite

misguided in concluding that the Badalamenti case was “pending.”

As Justice Kelly observes, legal and lay dictionaries define “pending” in

much the same way: “[r]emaining undecided; awaiting decision <a pending

case>,” Black’s Law Dictionary (8th ed), and “awaiting decision or settlement.”

Random House Webster’s College Dictionary (1997). Because of the similarity,

it is unnecessary to determine whether the term “pending” has acquired a peculiar

meaning in the law. The outcome is identical despite which dictionary is used.

A “pending” matter is an undecided matter awaiting decision, which the

Badalamenti case clearly was not.

The majority points to several court rules and, because they are

inapplicable, engages in an exercise of lexical gymnastics to reach its erroneous

conclusion. Specifically, the majority cites MCR 7.215(F)(1)(a), which explains

when Court of Appeals opinions become “effective.” That rule states that an

25

opinion becomes “effective after the expiration of the time for filing an

application for leave to appeal to the Supreme Court, or, if such an application is

filed, after the disposition of the case by the Supreme Court[.]” Notably, the rule

does not use or define the term “pending” and is in no way referenced by or

connected to the disciplinary rule at issue. As such, it is a poor source by which

to interpret when a case might be “pending” for purposes of restricting attorney

comment, particularly when the word’s common and legal meanings are flatly

ignored.

Similarly unhelpful is the majority’s striving attempt to support its

position by citing various other procedural rules, specifically MCR

7.302(C)(2)(a), (b), and (c), MCR 7.210(H), and MCR 7.317(C) and (D), that

govern filing applications for leave to appeal to this Court and returning the

record to the lower court. See ante at 15-16 & n 14. Of course, those rules say

nothing about when a Court of Appeals opinion is either “effective” or still

pending. But more importantly, the majority fixates on our procedural

mechanisms to the complete disregard of the constitutional framework within

which the question must be examined. The bounds of free speech are not a

function of procedural court rules, as discussed later. Rather, the inquiry must

center on whether the type of harm sought to be prevented is imminent if the

speech is not curtailed. When a record is returned to the lower court is

completely irrelevant to a discussion regarding whether speech about a case can

be silenced.

26

The majority also “reveals” that respondent ultimately moved for

rehearing and for leave to appeal as if this were damning evidence of the

pendency of the Badalamenti case. Ante at 17 & n 17. It is not. Nothing the

majority points to, and nothing uncovered in an exhaustive jurisdictional search,

supports the novel notion that speech can be restricted until the time when no

further relief from a judgment can ever be sought.

Just as strangely, the majority states that the Badalamenti case was

“‘begun, but not yet completed’” because the Court of Appeals, “by granting a

motion for reconsideration or rehearing, could still have affected the substantial

rights” of respondent’s client. Ante at 17. It further opines that the case was still

“awaiting rendition of a final judgment” because “Mr. Fieger filed an application

for leave to appeal in this Court . . . .” Ante at 18 n 17. This is faulty logic at its

core. When respondent made his statements, there was no motion for

reconsideration. When respondent made his statements, the case was not

“awaiting rendition of a final judgment” because respondent had not, in fact, filed

an application for leave to appeal in this Court. It cannot be said any more

simply: nothing that had begun lacked completion.

Further, without support, the majority decides that the opposite of

“pending” is “final.” Ante at 17 n 17. Proffering a purported antonym, with

nothing more, to divine the meaning of a word is certainly a novel approach, but

in any event, the attempted correlation does not withstand scrutiny because the

court rules on which the majority relies explain when a judgment is “effective”

27

and when the Court of Appeals should return the record to the lower court. The

uncomplicated task the majority confounds is deciphering the meaning of the

word “pending.” Rather than conduct a simple application of the plain meaning

of the word to the facts at hand, the majority circumscribes its assessment of the

word “pending” to unrelated court rules, short-shrifting respondent—and any

other attorney who wishes to engage his or her right to free speech—and

resulting in a contorted analysis.

Further, while MCR 7.302 discusses applications for leave to appeal to

this Court, it does not address when a trial court judgment, a matter from this

Court, or a matter from any other judicial or administrative agency is “pending.”

And while the majority does not assert that MRPC 3.5(c) curtails only speech

about Court of Appeals opinions, its analysis regarding when a Court of Appeals

case is “pending,” which focuses only on when the judgment is “effective,” fails

to consider any potential incongruities that may arise with respect to when it is

“safe” to speak about non-Court of Appeals cases. In other words, by failing to

apply in a straightforward manner either the common or the legal meaning of

“pending,” the majority allows for vastly different rules in similar scenarios.

And, oddly, the majority suggests that a different rule may apply when a court

has accepted a case on appeal. Ante at 16 n 15. To suggest that a case is pending

after a final judgment is rendered and while no motions for reconsideration or

appeal have been filed, but that it may not be pending after the case has been

accepted on appeal, is counterintuitive logic to say the least.

28

Last, it is paramount to observe that when an enactment threatens to

encroach on a person’s constitutional guarantees, “‘every reasonable construction

must be resorted to, in order to save [the enactment] from unconstitutionality.’”

Edward J DeBartolo Corp v Florida Gulf Coast Bldg & Constr Trades Council,

485 US 568, 575; 108 S Ct 1392; 99 L Ed 2d 645 (1988), quoting Hooper v

California, 155 US 648, 657; 15 S Ct 207; 39 L Ed 297 (1895). Interpreting the

word “pending” in a way that restricts respondent’s First Amendment guarantees

and casts constitutional doubt on the conduct rule is contrary to this “cardinal

principle” of construction. Id. Faced with alternative ways to construe when a

case is “pending,” this Court is obligated to choose the interpretation that poses

the least danger of silencing speech. See part III of this opinion. This the

majority fails to do.

Were the meaning of “pending” given proper import here, rather than

being contorted or ignored, it would be plain that a matter that has been decided

by the Court of Appeals is no longer “pending.” As such, the majority’s analysis

is incomplete and, ultimately, incorrect. Given the proper construction, which

includes accounting for the constitutional implications, it is evident that the

Badalamenti case was not “pending” when respondent spoke publicly about it.

Thus, the majority not only unjustifiably expands the meaning of the otherwise

plain language of the rules at issue, it also compounds its error by misusing our

authority to limit speech that pertains to a pending case because the case was not,

in fact, pending.

29

III. Respondent’s Political Comments Were Protected By the First Amendment

Right to Free Speech

“There is no question that speech critical of the exercise of the State’s

power lies at the very center of the First Amendment.” Gentile, supra at 1034.

This case, like Gentile, involves “classic political speech.” Id. The incorrectness

of the majority’s assertion otherwise is easily exposed. Tellingly, the majority

purports to acknowledge respondent’s argument that he engaged in “political”

speech, but it then proceeds to totally misunderstand the nature of political

speech and disregard the entire body of law pertaining to it. By this paucity of

reasoning, the majority completely guts the First Amendment and renders an

alarming—and, no doubt, singular—holding that speech critical of public

officials is prohibited unless the public official is facing reelection at the time the

speech is made10 or the speech uttered is palatable to the majority’s sense of

civility. Neither precept can be found in our First Amendment jurisprudence.

To provide the needed jurisprudential background the majority omits,

political speech protection encompasses not only statements about current

electoral candidates, but extends to all “expression of editorial opinion on matters

10

Because the majority suggests that respondent’s speech was not

“campaign speech” because the judges about whom he spoke were not running for

reelection, it might be helpful for it to explain exactly how close in time a person

can speak uninhibitedly about an elected public official. Must the official be

running in the year the comments are made? Must the official have already

announced his candidacy? And what of appointed public officials who need not

run in elections—are they always shielded from criticism because criticisms about

them will always be made outside the context of a campaign?

30

of public importance . . . .” FCC v League of Women Voters of California, 468

US 364, 375; 104 S Ct 3106; 82 L Ed 278 (1984). “‘Whatever differences may

exist about interpretations of the First Amendment, there is practically universal

agreement that a major purpose of that Amendment was to protect the free

discussion of governmental affairs.’” Burson v Freeman, 504 US 191, 196; 112

S Ct 1846; 119 L Ed 2d 5 (1992), quoting Mills v Alabama, 384 US 214, 218; 86

S Ct 1434; 16 L Ed 2d (1966). Respondent’s comments fall easily into this

closely protected category of speech: he made critical statements about what he

perceived as an errant decision that unjustly divested his seriously injured client

of a jury verdict. The judges who overturned the jury verdict were, of course,

part of our judicial system, which “play[s] a vital part in a democratic state” and

in which “the public has a legitimate interest in [the] operation[].” Gentile, supra

at 1035.

“[S]peech concerning public affairs is more than self-expression; it is the

essence of self-government.” Garrison v Louisiana, 379 US 64, 74-75; 85 S Ct

209; 13 L Ed 2d 125 (1964). Thus, the United States Supreme Court has

“repeatedly explained [that] communication of this kind is entitled to the most

exacting degree of First Amendment protection.” League of Women Voters,

supra at 375-376. Stated another way, political speech “occupies the ‘highest

rung of the hierarchy of First Amendment values,’ and is entitled to special

protection.” Connick v Myers, 461 US 138, 145; 103 S Ct 1684; 75 L Ed 2d 708

(1983), quoting NAACP v Claiborne Hardware Co, 458 US 886, 913; 102 S Ct

31

3409; 73 L Ed 2d 1215 (1982). Thus, when a government ventures into the

perilous realm of restricting political speech, it must produce evidence of a state

interest so significant that it fully justifies the otherwise forbidden endeavor of

silencing those who desire to publicly find fault with the way in which the

government conducts its affairs. See Bridges, supra at 270-271. Moreover, the

government must show that the rule is so narrowly tailored that there is no

unnecessary interference with First Amendment freedom. Sable

Communications of California, Inc v FCC, 492 US 115, 126; 109 S Ct 2829; 106

L Ed 2d 93 (1989). Rules inhibiting unhampered comment, thus shackling the

right to freely express opinion, must be justified, “[i]f they can be justified at

all, . . . in terms of some serious substantive evil which they are designed to

avert.” Bridges, supra at 270 (emphasis added); see also id. at 262 (“[T]he

likelihood, however great, that a substantive evil will result cannot alone justify a

restriction upon freedom of speech or the press.”). And protecting the judiciary

or other public actors from derision, however crudely or distastefully expressed,

has consistently been rejected as a “serious substantive evil” that would justify

restrictions on speech.

The assumption that respect for the judiciary can be won by

shielding judges from published criticism wrongly appraises the

character of American public opinion. For it is a prized American

privilege to speak one’s mind, although not always with perfect good

taste, on all public institutions. And an enforced silence, however

limited, solely in the name of preserving the dignity of the bench,

would probably engender resentment, suspicion, and contempt much

more than it would enhance respect. [Id. at 270-271.]

Consider also the following:

32

More fundamentally, although the State undoubtedly has a

substantial interest in ensuring that its attorneys behave with dignity

and decorum in

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