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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

(2) eae co U.S.
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,
V.

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
COPLFIN F BeteCEe BFE E SMEEEE © bs eccesesveseceieionsvesscsinvesecssesorssiss 3
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
IE, ss sicauscresacicvsesse dlaeeaten eada ee ae 9

A. This Court generally reviews only
questions properly raised in the questions
NINN ois caiccsscssacervdincocdaeeeoeneare ie ae 9

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:

(c) engage in undignified or discourteous
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
g

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))

-10-

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

1Y

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

9)

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,

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 Nelson

Heather Meingast

Assistant Attorneys General

Attorneys for Respondent
Dated: Noveriber 2009

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0898%3A2. Public record. Not legal advice.