Opposition Brief — Fieger v. Supreme Court of Michigan, (2009) (No. 142)

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Z NOV 25 2009

No. 09-142 OFFICE OF THE CLERK

jn The

Supreme Court of the United States

we. :-C~—

GEOFFREY N. FIEGER

Petitioner,

MICHIGAN SUPREME COURT; CLIFFORD W.

TAYLOR; MAURA D. CORRIGAN; ROBERT P.

YOUNG, JR.; STEPHEN J. MARKMAN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF

APPEALS FOR THE SIXTHCIRCUIT

BRIEF IN OPPOSITION

Michael A. Cox

Attorney General

B. Eric Restuccia

Michigan Solicitor General

Counsel of Record

P. O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

Margaret A. Nelson

Heather S. Meingast

Assistant Attorneys General

Attorneys for Respondent

“1°

QUESTION PRESENTED

Does an attorney have a [First

Amendment right to publicly express

non-defamatory personal criticism of a

judge when that criticism could not

affect any pending trial, as the Ninth

Circuit and the supreme courts of

Colorado, Oklahoma, and Tennessee

have held, or is attorney subject to

discipline for such criticism, as the

Seventh Circuit and the supreme courts

of Michigan, Mississippi, and Missouri

have held?

PARTIES TO THE PROCEEDING

Petitioner, Geoffrey N. Fieger, is a licensed

attorney in Michigan. Respondents are the Michigan

Supreme Court, three current Justices on that court,

Justice Maura D. Corrigan, Justice Robert P. Young, Jr.,

and Justice Stephen J. Markman, and one former

Justice, Clifford Taylor.

tik.

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

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OPINIONS BELOW

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CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

INTRODUCTION

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REASONS FOR DENYING THE PETITION

i The merits of Petitioner's constitutional

challenges to M.R.P.C. 3.5(c) and 6.5(a) did not

form the basis for the Sixth Circuit's decision and

are not properly before the court.................sccecessssscsseees 8

I]. Petitioner has not raised the issue of

standing in his question presented. And even if

the issue were to be considered, the Sixth Circuit's

decision was correct and consistent with Court

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A. This Court generally reviews only

questions properly raised in the questions

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CONCLUSION

-1V-

TABLE OF AUTHORITIES

Cases

Adair v. State of Michigan,

470 Mich. 105; 680 N.W.2d 386 (2004). 00.0... eee 8

Ashcrott v. Mattis,

ON Oe OR sens divi covceeeceecuneinsiissninasdccevin 19, 20

Badalamenti v. William Beaumont Hosp.,

237 Mich. App. 278; 602 N.W.2d 854 (1999). ......... 3

Board of Airport Comm'rs v. Jews for Jesus, Ine,

Oe BE sian exnaverdicieceaciunincicassenecssdanceres 13

Brandywine, Inc. v. City of Richmond,

ee) 12

Broadrick v. Oklahoma,

ee ee e.g .ccevestcnstetiwenvacnncsoanenacs 13

Brockett v. Spokane Arcades, Inc,

ee es ov dceaunajaeesnnncanvncurensas eke 13

City of Los Angeles v. Lyons,

Oe Be ee aoe ota pai asa vince dc evacsanr anna senencasvnss 18

Fieger v. Grievance Administrator,

BO se te I vcs socentnece sa iasvscesescvevsesecssccciarshe @

Grendel] v. Ohio Supreme Court,

252 F.3d 828 (6th Cir. 2001),

cert. den., 534 U.S. 955 (2001). ............ 14,

Grievance Administrator v. Fieger,

476 Mich. 231; 719 N.W.2d 123 (2007),

cert. den., 549 U.S. 1198 (2007). ......................3, 0, 6

Kowalski v. Tesmer,

Re OF ct hE, can ve dccsasnosccdedcncesceseccceisccianes 10,

Laird v. Tatum,

I BI oc ncnnnanenaucuvanbaecucaanantemaatelions 14

Leonardson v. City of East Lansing,

BOG FB YOO TOE Cir. FOGG)... .ncescscsisevcccscisecseisenes: 12

Lujan v. Defenders of Wildiife,

Be OE te CED, cicseiisvcovevncesensienssrevarsesntescnnns 11, 72

MedImmune, Inc. v. Genentech, Inc. et al,

549 U.S. 118 (2007) ti, is, 2]

Middlesex County Ethics Committee v. Garden

State Bar Ass'n,

Or Se RS veisissncesavasertaveice eemasaen 5

Morrison v. Board of Education,

Be Feed Ge Tey Cae, DE oie cooeccsis cau nacsocecccecccccace 14

NAACP v. Button,

re, st a ee 12

Peterson Novelties v. City of Berkley,

306 F.3d SEG (6th Cir. BOOB). ...cccccccccccccscsccccsscecseecces 8

Prime Media, Inc. v. City of Brentwood,

B74 F.3d BBS (thy Cir. BOOT). occccccccsessccssiesesecses 12,13

Ramurez v. Ramos,

438 F.3d 92 (ist Cir. 2006)

Sec'y of State of Maryland v.

Joseph H. Munson Co., Inc.,

467 U.S. 947 (1984)

Steffel v. Thompson, et al.

OE WF. Fe BET, vsssicssssnvacrccnvcosencescnnes 11, 13, 17, 21

Stone v. Powell,

ee Me CT ooos cnc xcueucacssucancosdancasbeceseccecuioen 10

Taxpayers for Vincent,

Me EPI ME ov dsp necssencves caneaonnouseeucreemuetaenanan 13

-yi-

Triplett Grille Inc v. City of Akron,

GO FOE 120 GG Cir. TDD). crcscccerssscsvescossescresssssvsve 12

Virginia v American Booksellers Ass'n,

ooo ce cuss ass cviececevavenantansansns 12, 13

Warth v. Seldin,

ET IT NE, .. ssncpsucsvseveurdnvaonsvsoctiveneseeseuons 12

Winsness v. Yocom,

OSS FOG 727 (IGG Cir, 2006). ....6ccsiccccsssscveessscaseees 16

Yee v. City of Escondido,

ee i Se oc cscs hccndseiserartnavstesesnevwseovovess 9,10

Younger v. Harris,

ee os cseucusaecsenccvenvacreseevecessos te OT

Rules

Eb eE Ae BiN cece scesnes laa acvialsadsiersvausedidanadievenacaced passim

OD oss ss cipenvccabooseuseduesresesnsee rakegameeedede passim

I i Svcxinssesindesenvavapenssonanesavenase en 3

I Bt IE WB OD visissscunsioveedavciiossevniscesss ns eee eee 5

ee scan ponbuansdientaeesetassseosvsets 5

Sup. Ct. Rule 14.1(a)......... 7

-|-

OPINIONS BELOW

The January 20, 2009, panel decision of the U.S.

Court of Appeals for the Sixth Circuit was recommended

for full-text publication and is printed at Pet. App. 1.

The petition for rehearing en banc was denied without

opinion in an unpublished order dated May 1, 2009. Pet.

App. 109.

JURISDICTION

Respondents concur in Petitioner's statement.

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

Respondents concur in Petitioner's statement.

INTRODUCTION

In this case, Petitioner Geoffrey N. Fieger, a

Michigan attorney, asks this Court to review whether

Michigan Rules of Professional Conduct, which prohibit

discourteous conduct by attorneys, are facially

unconstitutional under the [First and Fourteenth

Amendments. That question, however, was not decided

by the U.S. Court of Appeals for the Sixth Circuit

because that Court correctly determined that Petitioner

did not have standing to bring these claims in federal

court. The Sixth Circuit concluded that Petitioner had

not sufficiently alleged an injury-in-fact, a required

element of Article III standing, to support his claim.

This Court should deny the petition first because

Petitioner is only seeking review of a question — the

facial challenge to the courtesy rules — that was not

decided by the Sixth Circuit. Without a majority

decision on the constitutional question, there is no

merits decision for this Court to review, and importantly,

there was no decision on Respondents' alternative

arguments that would also have precluded a decision on

the merits in this case.

Second, because Petitioner does not seek review of

the Sixth Circuit's substantive decision on standing, but

only the unanswered constitutional question, this case

does not present a proper vehicle for deciding either

question. And, in any event, the Sixth Circuit's

determination that Petitioner lacked standing was

consistent with its own precedent and that of this Court.

This Court therefore should decline review in this

matter.

COUNTER-STATEMENT

This case involves a facial constitutional challenge

under the First and Fourteenth Amendments to

Michigan Rules of Professional Conduct (M.R.P.C.) 3.5(c)

and 6.5(a) by attorney Geoffrey N. Fieger, who was

disciplined on a single occasion under these rules.

The discipline upon which this case is based arises

from an attorney grievance filed against Petitioner

Fieger by the Michigan Attorney Grievance

Administrator.' The grievance complaint alleged that

Petitioner Fieger violated M.R.P.C. 3.5(c) and 6.5(a), as

well as other rules, when he verbally attacked a panel of

the Michigan Court of Appeals after the panel vacated a

favorable jury award.? Over a two-day period during a

local radio show hosted by Petitioner, Petitioner Fieger

made vulgar and intemperate comments about the three

judges involved in that decision. Petitioner Fieger

addressed these judges by name and stated he "declared

war on them"; suggested the judges should "IkJiss my

ass" and that his client should "shove [his finger] up

their asses"; called the judges "three jackass Court of

Appeals judges"; suggested they be sodomized with a

"plunger about the size of, you know my fist"; and

referred to them as Adolf Hitler, Joseph Goebbels, and

Eva Braun.3

1 The Grievance Administrator is the investigative and prosecutorial

arm of the Michigan Supreme Court in attorney discipline matters

Mich. Ct. Rule 9.108

2? Badalamenti v. William Beaumont Hosp., 237 Mich. App. 278: 602

N.W.2d 854 (1999)

3 Grievance Administrator v. Fieger, 476 Mich. 231; 719 N.W.2d 123.

129-130 (2007), cert. den., 549 U.S. 1198 (2007)

Discipline proceedings were commenced against

Petitioner Fieger with the filing of a grievance complaint

alleging violations of M.R.P.C. 3.5(c) and 6.5(a).

M.R.P.C. 3.5(c) provides:

A lawyer shall not:

conduct toward the tribunal.

M.R.P.C. 6.5(a) states:

(a) A lawyer shall treat with courtesy and

respect all persons involved in the legal

process. A lawyer shall take particular

care to avoid treating such a person

discourteously or disrespectfully because of

the person's race, gender, or other

protected personal characteristic. To the

extent possible, a lawyer shall require

subordinate lawyers and _ nonlawyer

assistants to provide such courteous and

respectful treatment

Petitioner and the Grievance Administrator

subsequently stipulated to an agreement whcreby

Petitioner agreed not to contest that his remarks

violated M.R.P.C. 3.5(c) and 6.5(a); to the imposition of a

reprimand, and that Petitioner would be allowed to

argue on appeal both the applicability and the

constitutionality of the challenged rules.

On appeal to the Attorney Discipline Board,‘ the

Board held in Petitioner's favor, and the Grievance

Administrator then appealed to the Michigan Supreme

Court, which granted leave. The Michigan Supreme

Court issued its opinion on July 31, 2006.

A majority of the Michigan Supreme Court

concluded that M.R.P.C. 3.5(c) and 6.5(a) applied to

Petitioner's conduct, that his speech was not protected,

and that the challenged rules were constitutional.®

Petitioner Fieger then filed a petition for writ of

certiorari seeking direct review of the Michigan Supreme

Court's decision, which was subsequently denied.®

On April 7, 2006, while the discipline matter was

still before the Michigan Supreme Court, Petitioner filed

the complaint in this case. The Michigan Supreme Court

and all seven Justices, in their respective official

capacities, were named as defendants. The district court

originally dismissed the complaint on abstention

grounds under Younger v. Harris’ and Middlesex

County Ethics Committee v. Garden State Bar Ass'n

since the discipline proceedings remained pending.®

As noted above, three months later the Michigan

Supreme Court released its decision in Grievance

‘ The Board 1s the adjudicative arm of the attorney discipline

process and hears all appeals of nght from discipline orders entered

by the various hearing panels. Mich. Ct. Rule 9.115; Mich. Ct. Rule

9.118

’ Grievance Administrator v. Fieger, 719 N.W.2d at 123

Fieger v. Grievance Administrator, 549 U.S. 1205 (2007)

—

Younger Vv. Harris, 401 U.S. 37 (1971)

‘ Middlesex County Ethics Committee v. Garden State Bar Ass'n

157 U.S. 423 (1982)

Administrator v. Fieger, finding that M.R.P.C. 3.5(c) and

6.5(a) applied to Petitioner's speech and were

constitutional, rejecting the First Amendment

overbreadth and vagueness challenges Petitioner

asserted.’

Petitioner then filed a motion for reconsideration

and relief from judgment with the district court on

August 11, 2006. After briefing and oral argument, the

district court granted the motion on March 20, 2007,

essentially concluding that the court had made a

mistake in previously dismissing the case on abstention

grounds. The court asked for supplemental briefing on

the merits of Petitioner's constitutional claim.

Because the Justices were each named separately,

it was necessary to separate their defenses given the

nature of the case and the fact the district court was

proceeding to the merits of the case. Three Justices,

Marilyn Kelly, Michael Cavanagh, and Elizabeth

Weaver, had dissented from the majority in the

Grievance Administrator decision.

The parties then briefed the merits and other

issues, including standing, Eleventh Amendment

immunity, and the preclusion doctrine. On September 4,

2007, the district court granted summary judgment in

favor of Petitioner, concluding that the courtesy rules

were unconstitutional under the First Amendment. 'The

court entered its judgment against the Michigan

Supreme Court and the four Justices who comprised the

majority in Grievance Administrator v. Fieger. These

Respondents appealed to the U.S. Court of Appeals for

the Sixth Circuit

‘Grievance Administrator v. Fieger. 7\9N.W a at

In its opinion on appeal from the district court's

judgment in this case, the Sixth Circuit Court of Appeals

concluded, in a 2-1 decision, that Petitioner Fieger

lacked standing to raise the facial constitutional

challenges asserted in this federal action. The majority

opinion did not address the other jurisdictional issues

raised by Respondents, including the Eleventh

Amendment jurisdictional bar of the claims against the

Michigan Supreme Court, or preclusion doctrine. Most

notably, the majority did not address the merits of the

First and Fourteenth Amendment claims.

Rather, the majority concluded Petitioner Fieger

lacked standing because he "failed to demonstrate actual

present harm based on a single, stipulated reprimand."

Pet. App. 3. He did not articulate, with any degree of

specificity, his "intended speech and conduct" that was

being chilled; and did not sufficiently establish "a threat

of future sanction under the narrow construction of the

challenged provisions applied by the Michigan Supreme

Court." Pet. App. 3. The majority vacated the judgment

of the district court and remanded the case with

instructions to dismiss the complaint for lack of

jurisdiction. Pet. App. 3

- &-

REASONS FOR DENYING THE PETITION

The merits of Petitioner's constitutional

challenges to M.R.P.C. 3.5(c) and 6.5(a) did not

form the basis for the Sixth Circuit's decision and

are not properly before the court.

Contrary to Petitioner's argument, the

constitutional issues argued below and in his Petition

did not form the basis for the Sixth Circuit's decision.

The majority for the Sixth Circuit decided this case on

the standing issue. Yet, Petitioner's argument

principally focuses on the substantive issues raised in

his complaint and decided by the district court. Further,

Petitioner's arguments are an ill-disguised attempt to

obtain another direct review of the Michigan Supreme

Court's decision in Grievance Administrator v. Fieger, a

review that was previously rejected by this Court. !°

Petitioner also ignores the substantial

jurisdictional issues raised by this argument including

the application of the preclusion doctrine — both claims

and issue preclusion. These constitutional challenges

either were or could have been raised in Grievance

Administrator v. Fieger before the Michigan Supreme

Court, the test under Michigan's law for determining the

preclusive effect of this judgment. !!

Because neither the merits of the constitutional

claims nor these substantial jurisdictional issues were

decided by the Sixth Circuit, there is no decision for this

Court to review on these legal questions. A grant of

certiorarl to review the substantive constitutional

0 Flheger v. Grievance Administrator, 549 U.S. 1205.

\! Peterson Novelties v. City of Berkley, 305 F.3d 386, 394 (6th Cir.

2002); Adair v. State of Michigan, 470 Mich. 105, 121: 680 N.W.2d

386 (2004).

-Q-

challenges asserted by Petitioner should therefore be

denied.

II. Petitioner has not raised the issue of standing in

his question presented. And even if the issue

were to be considered, the Sixth Circuit's decision

was correct and consistent with Court precedent.

A brief review of the question presented in the

petition for certiorari reveals that Petitioner secks

re iew of whether Michigan's courtesy rules for

attorneys violate the First Amendment of the U.S.

Constitution, a question the Sixth Circuit did not decide

on the merits, or even as an alternative basis for denying

relief. To the extent the issue of standing — the only

issue decided on the merits by the Sixth Circuit — may be

considered properly before the Court, the Sixth Circuit's

decision is consistent with this Court's precedent.

Therefore the Court should decline review in this case.

A. This Court generally reviews only

questions properly raised in the questions

presented.

This Court has held that only a question raised by

a petitioner in the questions presented is properly before

the Court. For example, in Yee v. City of Escondido, this

Court observed that the framing of the question

presented has significant consequences because under

Supreme Court Rule 14.1(a), "only the questions set

forth in the petition, or fairly included therein, will be

considered by the Court." "While 'the statement of any

question presented will be deemed to comprise every

subsidiary question fairly included therein,’ ... we

2 Yee v City of Escondido, 503 U.S. 519. 535 (1992) (quoting Sup.

Ct. Rule 14.1(a))

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ordinarily do not consider questions outside those

presented in the petition for certiorari." This Court

noted tha: this rule was "prudential in nature," and that

the Court will only disregard it "In the most exceptional

cases,'" where reasons of urzency or of economy suggest

the need to address the unpresented question in the case

under consideration." !4

Here, Petitioner's statement of the question is

directed only at his First and Fourteenth Amendment

facial challenge to the constitutionality of Michigan's

courtesy rules. He does not seek review of the Sixth

Circuit's substantive decision conclud ng that he lacked

standing to pursue his’ constitutional claims.

Furthermore, the question of standing is not fairly

included within the First Amendment question. Asthe

Court in Yee observed, to be "fairly included" the

question must be more closely aligned with the question

presented than merely being "related" or

"“complementary."!5

The question of stariding is a significant question

of law in its own right, and while possibly related, the

answer to that question is, 1n no way, driven by the

substantive answer of whether the courtesy rules are

constitutional. '6 Because Petitioner does not seck

review of the Sixth Circuit's decision on standing, but

only the constitutionality of the courtesy rules, this case

does not present this Court with a proper vehicle for

resolving either legal question.

City of Escondido, 503 U.S. at 535 (citations omitted).

14 Yee v. City of Escondido, 503 U.S. at 535 (quoting Stone v. Powell,

428 U.S. 465, 481, n. 15 (1976)).

’ Yee v City of Escondido, 503 US

6 See. e.g., Kowalski v. Tesmer, 543 U.S. 125, 129 (2004)

B. The Sixth Circuit's decision that Petitioner

lacked standing was correct and consistent

with Court precedent.

Petitioner's argument with respect to standing

relies on the dissent to support the proposition that the

Sixth Circuit's decision represents a fundamental

misunderstanding of this Court's jurisprudence on

standing. The opposite, however, is true here.

Relying principally on this Court's decisions in

Uedlmmune Inc. v. Gentech, Inc., and Steffel v.

7iompson, the dissent suggested and Petitioner argues

that because this is a declaratory judgment action, all

that needs to be shown to establish standing is "whether

the facts alleged, under the circumstances, show that

there is a substantial controversy" between the parties.

Pet. App. 53.'7 Not only is Petitioner's reliance on these

cases misplaced because they did not address Article II]

standing, Petitioner's analysis overgeneralizes the law of

standing, even in the context of a First Amendment

overbreadth action.

Standing is "assessed under the facts existing

when the complaint is filed."'® As noted by the Sixth

Circwit, under the traditional requirements for standing,

a plaintiff must establish: (1) injury in fact, meaning an

invasion of a legally-protected interest that is concrete,

particularized, and actual or imminent; (2) a causal

relationship between the injury and the challenged

conduct; and (3) a hkelihood that the injury will be

1i MedI Immune, Inc. v. Genentech, Inc. et al, 549 U.S. 118 (2007):

Steffel v. Thompson, et al. 41 U.S. 452 (1974).

8 Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.4 (1992)

redressed by a favorable decision.'® To bring a cause of

action in federal court, there must be some threatened or

actual injury resulting from the putatively illegal

action.22 These are the required showings a plaintiff

must make to meet the requirements of constitutional

standing under Article III.

This Court has recognized a second strand of the

standing inquiry involves the doctrine of prudential

stancing; a judicially-created doctrine relied on as a tool

of "judicial self-governance."22. Prudential standing

requirements preclude litigation in federal court "when

the asserted harm is a 'generalized grievance' shared in

substantially equal measure by all or a large class of

citizens," or where instead of litigating “his own legal

rights and interests, 'the plaintiff instead purports to

'rest his claim to relief on the legal rights or interests of

third parties.""28

The First Amendment overbreadth doctrine is a

recognized exception to the consideration of prudential

standing.*4 Thus, a plaintiff may challenge laws that by

lo Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 834-35 (6th

Cir. 2004).

20 Virginia v American Booksellers Ass'n, 484 U.S. 383, 392-93

(1988)

21 Lujan, 504 U.S. at 560.

22 Warth v. Seldin, 422 U.S. 490, 500 (1975).

23 Prime Meaia, Inc. v. City of Brentwood, 474 F.3d 332, 337-38 (6th

Cir. 2007) (quoting Warth v. Se/din, 422 U.S. at 500); AKowa/ski v.

Tesmer, 543 U.S. 125, 129 (2004).

“4 Sec'v of State of Marvland v. Joseph H. Munson Co., Inc., 467 US.

947, 956-58 (1984): Brandywine, 359 F.3d at 835: Leonardson v. City

of East Lansing, 896 F.2d 190, 195 (6th Cir. 1990) (quoting WAACP

v. Button, 371 U.S. 415, 433 (1963)). See also Triplett Grille Inc v.

City of Akron, 40 F.3d 129, 135 (6th Cir. 1994); Board of Airport

-13-

virtue of their overbreadth inhibit the First Amendment

rights of individuals who are not before the court, "even

by a [plaintiff] whose own conduct may _ be

unprotected."25

The overbreadth doctrine, however, does not

excuse a First Amendment plaintiff from first

establishing the requisite constitutional standing

required by Article III.26 Indeed, as explained by this

Court in Virginia v. Am. Booksellers Ass'n.,"\tlo bring a

cause of action in federal court requires that plaintiffs

establish at an irreducible minimum an injury in fact;

that is, there must be some threatened or actual injury

resulting from putatively illegal action."27 Thus, contrary

to Petitioner's assertions, this Court's decisions in

MedImmune, Inc. and Steffe/ do not excuse plaintiffs

from -establishing the "injury-in-fact" requirement

necessary to show standing under Article III. Pet. App.

33-37. MedImmune and Steffe/ addressed whether the

declaratory judgment action in those cases satisfied the

case-or-controversy requirement of Article III. In both

cases, this Court recognized the need for a plaintiff to

demonstrate a genuine threat of enforcerent, a requisite

factor ignored by Petitioner in this case.

The Sixth Circuit's well-reasoned analysis,

though, addressed the standing issue in both the factual

and legal context presented here. The Court recognized

Comm'rs v. Jews for Jesus, Inc, 482 U.S. 569, 574 1987) (quoting

Brockett v. Spokane Arcades, Inc, 472 U.S. 491 (1985)).

25 Taxpayers for Vincent, 466 U.S. 789, 798-99 (1984): Broadrick v.

Oklahoma, 413 U.S. 601. 612 (1973).

26 Broadrick, 413 U.S. at 612.

27 Virginia v. Am. Booksellers Ass'n., 484 U.S. at 392-98. See also

Sec'y of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S.

at 958; Prime Media, Inc., 474 F.3d at 337-38.

-14-

that even the "relaxed approach" to standing in the First

Amendment overbreadth context does not "eviscerate the

standing requirement which is a constitutional mandate

that is ‘absolute’ and ‘irrevocable. Pet. App. 13-14.

The Sixth Circuit applied these standing

requirements in the context of Petitioner's argument in

support of his facial challenges to M.R.P.C. 3.5(c) and

6.5(a). First, Petitioner argued he suffered actual

present harm because the courtesy rules and the threat

of discipline for violating them have "chilled" his speech

and conduct. Second, Petitioner argued he suffers a

significant possibility of future harm because he was

twice subjected to disciplinary proceedings under the

rules. Of course only once did this result in discipline,

to which Petitioner himself consented.

The Sixth Circuit correctly rejected Petitioner's

subjective assertion of "chilled" speech as conferring

standing. This was consistent with this Court's

precedent in Laird v. Tatum, where the Court

determined that "[a]llegations of a subjective 'chill' are

not an adequate substitute for a claim of specific present

objective harm or a threat of specific future harm."2* It

was also consistent with the Sixth Circuit's own

precedent. 29

The Court also properly rejected Petitioner's

second argument of threatened harm of future injury as

28 Laird v. Tatum, 408 U.S. 1, 13-14 (1972).

29 See Morrison v. Board of Education, 521 F.3d 602, 608-10 (6th

Cir. 2008) (holding that high school student did not have standing in

First Amendment overbreadth case where student stifled his own

speech based on subjective fear of punishment by school district)

and Grendell v. Ohio Supreme Court, 252 F.3d 828 (6th Cir. 2001),

cert. den., 534 U.S. 9455 (2001)

having been "significantly diminished by the narrow

construction placed on the courtesy and civility

provisions by the Michigan Supreme Court and by the

specific factual context in which Fieger was sanctioned."

Pet. App. 20. The Sixth Circuit concluded that, in light

of the narrowing construction, the Michigan Supreme

Court acknowledged that lawyers have a right to

criticize judges generally. However, given Fieger's

extreme remarks about participants in a pending case —

for which he stipulated to a reprimand — "it is incumbent

upon [Petitioner] to articulate something more than a

generalized, speculative 'chilling' of speech to establish

the required injury-in-fact." Pet. App. 22. Petitioner has

not demonstrated any error in this analysis or the

certainty of future enforcement justifying a conclusion

that the injury-in-fact requirement of standing was met

in this case.

Indeed, in determining whether the facts alleged

established Petitioner's standing to bring’ these

constitutional challenges, the Sixth Circuit looked to its

own precedent, and found that this case was controlled

by the result in Grende// v. Ohio Supreme Court—an

analogous case. 30°

There, the plaintiff attorney brought an action for

declaratory and injunctive relief against the Ohio

Supreme Court in an attempt to forestall the imposition

of sanctions against him for his filing of a frivolous

‘awsuit against several Ohio legislators. The attorney

alleged the rule was facially unconstitutional under the

Fifth and Fourteenth Amendments to the Constitution.

The Sixth Circuit concluded that the attorney did not

have standing to sue because he had not alleged a

sufficient injury in fact, either based on his past

9 Grendell v. Oh1o Supreme Court, 252 F.3d 828

-16-

exposure to sanctions by the Ohio Supreme Court, or his

assertion that the Ohio rule of practice "chilled" his

exercise of protected conduct. With respect to the latter,

the attorney argued that the Ohio Supreme Court's

power to sanction attorneys pursuant to the rule,

“continuously exposels the plaintiff-appellant] ... to the

"chilling effect" of the hanging of the "Sword of

Damocles" over them.""®!

As evidence of the chilling effect, the attorney

alleged that fear of unconstitutionally imposed sanctions

forced him to withdraw from two cases before the Ohio

Supreme Court. The Sixth Circuit determined that the

attorney could not rely on this argument because no

First Amendment activity was "impugned":

Even assuming arguendo that attorney

sanctions for frivolous or harassing

lawsuits implicate First Amendment

concerns, [plaintiff] cannot establish that

his fear of unconstitutionally imposed

sanctions is a chilling effect sufficient to

confer standing. *

The Sixth Circuit in Grende// observed that in assessing

the chilling effect criminal statutes have on First

Grendel/, 252 F.3d at 834 Unternal citation omitted).

2 Grendell, 252 F.3d at 834-35 Unternal citations omitted). See a/so

Ramirez v. Ramos, 438 F.3d 92, 98 (ist Cir. 2006) (""[Plarty's

subjective fear that she may be prosecuted for engaging in

expressive activity will not be held to constitute an injury for

standing purposes unless that fear is objectively reasonable."’);

Winsness v. Yocom, 433 F.3d 727, 734 (0th Cu. 2006) (Overbreadth

"does not exempt plaintiffs - even plaintiifs bringing facial

challenges on overbreadth grounds - from the bedrock Article III

standing requirements of injury‘in-fact, causation, and

redressability.")

-17-

Amendment expression, this Court has previously noted

that "it is not necessary that la plaintiff] first expose

himself to actual arrest or prosecution to be entitled to

challenge a statute that he claims deters the exercise of

his constitutional rights."** However, those fears of

prosecution cannot be merely "“imaginary'= or

speculative." The Grende//Court stated that the "mere

fact that [plaintiff] subjectively fears such sanctions, or

‘feels inhibited’ by the Ohio Supreme Court's sanctioning

power, does not objectively establish an imminent threat

that chills protected activity."

The Court acknowledged that the previous

imposition of sanctions was a factor the Court could

consider in its standing determination, but that the

plaintiff presented no evidence that the Ohio Supreme

Court threatened to sanction him in the cases from

which he withdrew, or that the Ohio Supreme Court was

currently threatening the plaintiff with sanctions in any

other case. Thus, the Sixth Circuit concluded "any

alleged chilling effect that [the Ohio Supreme Court

Rule] hald] on protected activity |lwas} an insufficient

injury to support standing."%6

Here, the Sixth Circuit properly applied the same

analysis — in keeping with this Court's precedent — to

Petitioner. The Sixth Circuit acknowledged that

Grendel] was a Fifth Amendment case, but found it

persuasive because of the nearly identical facts, and that

both attorneys alleged "chill" as the purported injury

Pet. App. 27. The Court determined that under

33 Grendell, 252 F.3d at 834 (quoting Steffe/, 415 U.S. at 459)

34 Grendel], 252 F.3d at 834 (quoting Younger, 401 U.S. at 42)

Grendel], 252 F.3d at 835 (citation omitted)

> Grendel] 252 F.3d at 835

18-

Grendel/, to show a palpable threat of future injury

necessary to achieve standing, Petitioner had to

demonstrate a chain of speculative events:

(1) that [Petitioner is] now, or highly likely

to be, speaking about a pending case; (2)

that such speech will concern participants

in that case and be vulgar, crude, or

personally abusive, exposing them to

sanctions under MRPC 3.5(c) or MRPC

6.5(a); (3) that the Michigan Supreme

Court would, in its discretion, impose such

sanctions; and (4) that the imposition of

those sanctions would violate [Petitioner's]

First Amendment rights. As in Grende/]/,

we conclude that such a chain of events is

simply too attenuated to establish the

injury in fact required to confer standing.

[Pet. App. 27.]

The Sixth Circuit noted the Grende// Court's reliance on

this Court's decision in City of Los Angeles v. Lyons.”

There, this Court held that the plaintiff did not have

standing to challenge the City police department's use of

chokeholds, even though he had been the prior victim of

such action, because the plaintiff's fear that he would,

sometime in the future, again be subjected to the

unlawful use of such a chokehold, was insufficient to

show future injury.”

The Sixth Circuit observed that Petitioner's

justification for standing was even less "robust" than the

plaintiff in Lyons, who had been injured by the use of the

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)

5 City of Los Angeles v. Lvons, 461 U.S. at 10A

chokehold, and who alleged that it was a policy of the

City police department to routinely engage in the use of

the challenged chokeholds. Pet. App. 29. This was

because Petitioner Fieger did not allege that

Respondents were "improperly wielding" the courtesy

rules to regularly discipline attorneys for their speech, or

even allege that any other attorney had been disciplined

under these rules. Pet. App. 29-30. The Court further

observed that Petitioner did not contend that any of the

disciplinary authorities in Michigan were specifically

targeting Petitioner:

In fact, the district court noted that Fieger

is "a vocal, often harsh, and at times vulgar

critic of Michigan's judiciary." Despite his

significant history of criticizing Michigan's

judges, it is revealing that Fieger's record

consists of a single, isolated reprimand

under the challenged provisions. Based on

that history, Fieger has _ failed to

demonstrate a reasonable threat of future

sanction. [Pet. App. 30.]

The Sixth Circuit also found persuasive the Grende//

Court's reliance on this Court's decision in Ashcroft v

Mattis.°°

In Mattis, this Court held that the plaintiff father

did not have standing to challenge a state statute

authorizing the use of deadly force during an arrest on

the basis that the plaintiff, whose son had been killed

while fleeing from arrest, had another son who might

one day flee from arrest and would thus be in danger of

being killed by the defendants.*° This Court ruled that

’ Ashcrott v. Mattis, 431 U.S. 171 (1977)

0 Mattis. 431 U.S. at 171-172 and n.2

such "speculation" was “insufficient to establish the

existence of a present, live controversy."4! The Court

resisted the urge to resolve the merits of the case in the

absence of a required case or controversy, and where the

issue of liability regarding the son's death had already

been decided, and observed that the plaintiff's primary

claim of present interest 1n the case was that he would

obtain emotional satisfaction from a ruling that his son's

death was wrongful.4? "Emotional involvement in a

lawsuit is not enough to meet the case-or-controversy

requirement '

Bearing Mattrs in mind, the Sixth Circuit

reviewed the context in which this case had arisen, and

noted that while Petitioner sought a declaration that the

courtesy rules were unconstitutional, he was essentially

seeking review of the Michigan Supreme Court's prior

determination, and this Court's refusal to hear the

matter.

We remind plaintiffs that the |Michigan

Supreme] court's judgment is not the

subject of this appeal because, consistent

with Mattis, "|t]hat issue has been decided

." Id. at 172. Nevertheless, Fieger, like

the plaintiff in Mattis, attempts to

accomplish through the back door what he

could not through the front -- invalidation

of the very rules that he admittedly

violated. In this way, Fieger's primary

objective resembles that of the plaintiff in

Mattis: to relitigate the disciplinary

Matti:

Mattis.

Watt .

“Oi -

proceedings in Michigan, but this time in

federal court. Fieger invites us to void the

rules he violated based on_ sheer

speculation of future discipline. We decline

the invitation. [Pet. App. 32-33.]

The Court thereafter reviewed and rejected the various

cases Petitioner and the dissent cited to support their

position that Petitioner had or would suffer an injury-in-

fact, including Steffe/ and Genentech. Pet. App. 33°48.

Thus, the Sixth Circuit concluded that Petitioner

lacked standing to sue under Article III because he could

not sufficiently allege an injury-in-fact based on an

"actual present harm or a significant possibility of future

harm based ona single, stipulated reprimand." Pet. App.

45-46. The Court further concluded that Petitioner had

not "articulated with any degree of specificity" his

intended speech and conduct and had not "sufficiently

established a threat of future sanction under the narrow

construction" of the courtesy rules provided by the

Michigan Supreme Court. Pet. App. 46. The Sixth

Circuit accordingly reversed the district court.

This case would be different if Petitioner had more

concretely identified the circumstances of the future

speech he believes he will or he intends to engage in

regarding Michigan judges, other than to simply suggest

to the courts he might say something unpleasant about

judges in the future. The same would be true if

Petitioner's fear of prosecution under the courtesy rules

was more convincing. ‘The facts, however, did not

support Petitioner's speculative fear. As the Sixth

Circuit observed the rules are rarely enforced, and only

once was Petitioner disciplined, and even then it was

upon his consent.

Moreover, Petitioner's argument fails to identify

any conflict between the circuit courts of appeals

regarding the law of standing as applied in this

particular case. More importantly, Petitioner's

argument further fails to identify any substantial

conflict between the Sixth Circuit's decision here and

this Court's precedent regarding Article III standing.

Finally, Petitioner fails to present any substantial issue

of law for consideration in this case necessary for this

Court's review.

-23-

CONCLUSION

For these reasons, Respondents ask this Court to

deny the petition for writ of certiorari.

Respectfully submitted,