Petition for Writ of Certiorari — Graves v. Warner Bros.

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No. 03- 40a tae CuK

In the

Supreme Court of the Anited States

PATRICIA GRAVES and FRANK AMEDURE, SR.,

Co-Personal Representative of the Estate of

SCOTT AMEDURE, Deceased,

Petitioners,

WARNER BROTHERS, THE JENNY JONES

SHOW, and TELEPICTURES, jointly and severally,

Respondents.

On Petition for a Writ of Certiorari

to the Michigan Supreme Court

PETITION FOR WRIT OF CERTIORARI

GEOFFREY NELS FIEGER

Counsel of Record

FIEGER, FIEGER, KENNEY

& JOHNSON, P.C.

19390 W. TEN MILE Roap

SOUTHFIELD, MI 48085

(248) 355-5555

(248) 355-5148 Fax

Counsel for Petitioners

Becker Gallagher Legal Publishing, Inc.

800.890.5001

aaa a ei Oa

QUESTIONS PRESENTED FOR REVIEW

Have the Petitioners been deprived of their rights under

State Law and the United States Constitution, to Due Process

and Equal Protection under the Fourteenth Amendment, by

the refusal of five Justices of the Michigan Supreme Court to

recuse themselves, and in deciding an appeal when they have

openly expressed prejudice and bias toward an attorney

involved in the case?

PARTIES TO THE PROCEEDINGS AND

CORPORATE DISCLOSURE STATEMENT

Petitioners are individuals, parents of Scott Amedure,

deceased. All parties are disclosed in the caption.

iil

TABLE OF CONTENTS

Page

Questions Presented for Review ..............005. i

Parties to the Proceedings and

Corporate Disclosure Statement ...............-: il

0 EPS ae eee ee eee ee eee lil

a ae eae ee a Vil

Petition for Writ of Certiorari ...............4-- l

gS ee ee

Pe l

Constitutional Provisions Involved ..............

Statement of the Case ....... Pa he eee e 2

I ee ee 8

I. THE MOTION FOR RECUSAL SHOULD

HAVE BEEN GRANTED AND THE FAILURE

TO DO SO AMOUNTED TO A

DEPRIVATION OF DUE PROCESS OF LAW

UNDER THE FOURTEENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

I te ee oe ea eek eS 8

B. The “Appearance” Standard .............. 10

Page

C. Extrajudicial Bias or Prejudice ............ 12

D. The Fourteenth Amendment Due Process

RI 3 NR heed Sore a ree ae 12

E. Recusal wus warranted under either State or

Constitutional standards. ................ 13

1. The Statements And Conduct In Issue,

Viewed Independently and

Collectively, Warrant The Recusal of

Justices Corrigan, Taylor, Markman,

OE Ae PHU, bv 5 4 he Ke sera ee 13

2. The Magnitude Of The Public Campaign

Benefit Warrants Recusal ............. 14

3. Justices Taylor, Corrigan, Young and

Markman May Harbor Bias Or Prejudice

Against Plaintiff's Counsel Arising Out Of

The Acrimonious Controversies Between

Mr. Fieger And Governor Engler, And

Their Respective Political Allies,

Including The Debate Over Physician-

Assisted Suicide And The 1998

Gubernatorial Campaign. ............. 15

4. Justice Young Should Have Recused

Himself Because Of The Perceived

“Hate” Relationship With Mr. Fieger In

Which He Finds “FIOMOF” 2 ww cc ea 17

;

‘i

Page

5. Justice Corrigan Should Have Recused

Herself After Filing A Grievance Against

Pinishiff’s Counsel. 0. ccc cc cece eenes 20

6. Justices Markman, Young and Taylor,

Whose Campaign Literature Attacked

Plaintiff's Counsel, Should Have Recused

: ee rarer ere a arg rac 22

7. Justices Markman, Taylor and Young, On

Whose Behalf Has Been Taken The

Position that Most Litigation is Frivolous

And That Plaintiff's Counsel is

Responsible, Should Have Recused

Tee, «. us bk as ne 0 ee ee 24

8. The Expressed Positions Regarding Mr.

Fieger’s Financial Affairs, And His

Economic Interest in This Case, Provide

An Additional Basis For Recusal......... 28

Comments... co 0k 6 0 60s OA eee 30

Appendix

Appendix A

Decision of the Supreme Court of Michigan,

Dated January 30, 2004 .......... eee eee la

Appendix B

Decision of the Supreme Court of Michigan,

Deed Gopetes 00. eee ss sts ek ee ee eee 4a

. Appendix C

Decision of the Supreme Court of Michigan,

Ce ke & wewerrerer rg eee 8a

Appendix D

Decision of the Court of Appeals of Michigan,

ag ge eee eee ee ere 10a

Appendix E

Affidavit of Geoffrey N. Fieger,

CE FUG, BOE <5 dbx 40 6a 42a

vil

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Johnson v Mississippi, 403 U.S. 212, 91 S.Ct. 1778,

29 L.Ed.2d 423 (1971). 2... ee ee ees 13, 20

Liljeberg v Health Services Corp., 486 U.S. 847, 108

S.Ct. 2194, 100 L.Ed.2d 855 (1988) .......-. 9

Liteky v United States, 510 U.S. 540, 1 14 S.Ct. 1147,

i27 L.Ed.2d 474 (1994) ........55: 9,11, 12

Mayberry v Pennsylvania, 400 U.S. 455, 91 S.Ct.

499, 27 L.Ed.2d 532 (1971)... 1. eee eee ees 12

Public Utilities Commission of DC v Pollak, 343 U.S.

451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952) ..... 17

Stretton v Disciplinary Board of the Supreme Court of

Pennsylvania,944 F.2d 137.(3d Cir., 1991)... . 25

United States v. Conforte, 624 F.2d 869 cg"

Cee FO ng cc asa Vee ees CES 16

United States v Sears, Roebuck & Co, Inc, 785 F.2d

777 (9 Cir., 1986)... . eee reece recess 27

Ward v Monroeville, 408 U.S. 57, 408 94 S.Ct. 80,

93 L.Ed.2d 267 (1972). 0... ccc cece vees 13

Withrow v Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43

EB O46 FID CIGTS) ow cc cece eee nes 12

STATE CASES

Armstrong v Ypsilanti, 248 Mich. 573, 640 N.W.2d

2) Ar eee eee eee 14

Auto Workers Credit Union v Kogler, 32 Mich. App.

257, 188 N.W.2d 184 (1971) .. 6.62 - eee ees 20

Vili

Page

In re Bennett, 403 Mich. 178, 267 N.W.2d 914

Pete 3a SiGe eee Cs eee eee eean 23, 24

Ex Parte Bryant, 675 So.2d 552 (Ala. Crim. App.,

1996) ..... ere rere eT See eT ere 14

Cain v. Dept of Corrections, 451 Mich. 470,

- Fee ©) Fi. | ar passim

Crampton v Department of State, 395 Mich. 347

SE 56.5 ask oa OE ee OE BAS 12, 13, 20

Czuprinski v Bay Judge, 166 Mich. App. 118, 420

JAF ft) | rere eae 20, 21

In the Matter of Del Rio, 400 Mich. 665, 256 N.W.2d

pgs, er ae rere a ee an Sees" 24

Gilbert v. Daimler Chrysler Corp., 469 Mich. 880,

A | eee 2

Graves v. Warner Bros. , 469 Mich. 853, 666 N.W.2d

RE 5 i Reales bee oad eee 1,2

Ireland v Smith, 214 Mich. App. 235, 542 N.W.2d

a Sears er ee 11, 27

Ex Parte James, 713 So.2d 869 (Ala., 1997) ..... 28

Kentucky Journal Publishing Co v Gaines, 139 Ky.

Pals BOO. BOP OOD 6 pt abe wees 19, 29

Martin v State, 804 So.2d 360 (Fla. App., 2001) .. 29

McCullough v Davis, 147 P. 779 (Okla.,

ene eer ere rare 29

North Dakota v Johnson, 55 N.D. 437, 214 N.W. 39

SEE a as ase ae eae ee ae ea 11

Park v American Casualty Ins Co, 219 Mich. App.

62, 555 N.W.2d T20 (1996) 0. ww cc ccc cce 10

Page

People v Bero, 168 Mich. App. 545, 425 N.W.2d 138

eer are aca wrire i irre a eo 20

People v Brown, 429 Mich. 877, 415 N.W.2d 864

(eee er er ee ge re e 10, 14

People v Gauntlett, 134 Mich. App. 737, 362 N.W.2d

fr rf ei re er ee ee 21

People v Lobsinger, 64 Mich. App. 284, 235 N.W.2d

, 2)... Sar are aaa erere faa 17, 18

People v Lowenstein, 118 Mich. App. 475, 325

hme Ee): reer ee 8

Ponder v Davis, 233 N.C. 699, 65 S.E.2d 356

1.) ieee asia arma e arark a ere are 19

State ex rel Russa v Himes, 144 Fla. 145, 197 SO.

, ¢). | Tre rear erarer ae serie ea 28

State v Garner, 760 S.W.2d 893 (Mo. App.,

eae erere ne arene ra are a ee 2, 23

Stephen v Natchez, 261 So.2d 486 (Miss. 1972) ... 19

Talbert v Muskegon Construction Co, 305 Mich. 345,

) & & gare Ot, | ee ee 8

Tower Group, Inc v Doral Enterprises, 760 So.2d 256

(Fla. App., 2000) ......-- cece cece veces 19

Town Centre of Islamorada, Inc v Overby, 592 So.2d

774 (Fla App, 1992) .....- cere eeveens 19

In re: Waterman, 461 Mich. 1207, 625 N.W.2d 748

ES eas eae Wee ee ae hd ee ee 9

Page

DOCKETED CASES

Gilbert v. Daimler Chrysler, Michigan Supreme Court

Se OO, as Cae ee he ee z.7

FEDERAL STATUTES

a ne ee ee ere 9

RE et | a 9

Ps ee OR rb as acee eed ee eee l

UNITED STATES CONSTITUTIONAL AMENDMENTS

ee i lh eg cw 1

]

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition this Court for a writ of

certiorari to review the decision by the Michigan Supreme

Court, and specifically four members of that Court, in

refusing to recuse themselves from deciding Petitioners

Appeal in this case when these Justices have openly expressed

bias and prejudice toward Petitioner’s counsel.

OPINIONS BELOW

The underlying decision in this case is reported at Graves

v. Warner Bros., 469 Mich. 853, 666 N.W.2d 665 (2003).

STATEMENT OF JURISDICTION

The Michigan Supreme Court denied Petitioners Motion

for Recusal on October 10, 2003 and Motion for Rehearing on

January 30, 2004. This petition is brought within 90 days of

that date under Supreme Court Rule 13. Petitioners

respectfully invoke this Court’s jurisdiction under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

This case involves Section I of the Fourteenth Amendment

to the United States Constitution which provides in relevant

part:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

This matter involves the shooting death of Petitioners’

son, Scott Amedure, following an appearance on The Jenny

Jones Show in March of 1995. Scott was shot and killed by

Jonathan Schmitz after filming a “Same Sex Secret Crush”

ambush show. This case was tried before a jury in Oakland

County, Michigan. The jury awarded Amedure’s estate

approximately $30 million dollars.

On October 22, 2002 the Michigan Court of Appeals

reversed the jury’s verdict in Graves v. Warner Bros., 469

Mich. 853, 666 N.W.2d 665 (2003). Petitioners, believing

the appellate court’s reasoning to be faulty, filed an

Application for Leave to Appeal to the Michigan Supreme

Court. This Application was denied on July 17, 2003, ona

five to two vote. Voting against granting leave to appeal were

Justices Markman, Corrigan, Taylor, Young and Weaver.

During the time that the Application was pending,

Plaintiff's counsel, Geoffrey Fieger, had sought the recusal of

Justices Markman, Corrigan, Taylor and Young in another

case pending before the Court, Gilbert v. Daimler Chrysler,

Michigan Supreme Court Docket No. 122457, a sexual

harassment case wherein Mr. Fieger has secured a jury

verdict of over $21 million on behalf of his client. The

motion for recusal was based, in part, on unprecedented

expressions of bias toward Mr. Fieger by sitting Justices

Markman, Corrigan, Taylor and Young. The motion for

recusal in that case was denied on October 30, 2003. Gilbert

v. Daimler Chrysler Corp. , 469 Mich. 880, 669 N.W.2d 265

(2003), reh. den. 670 N.W.2d 560 (2003).

Petitioners filed a Motion for Recusal in the present case,

referencing the motion filed in the Gilbert case. The Michigan

Supreme Court, likewise, denied Petitioners’ motion on

October 10, 2003. Specific Justices who had been requested

to recuse themselves, Markman, Taylor, Corrigan and

Young, all declined to address the allegations of bias and

prejudice toward Mr. Fieger even though required by law to

do so.

The allegations of bias begin in the early 1990's.

Petitioners’ trial attorney, Geoffrey Fieger, represented Dr.

Jack Kevorkian, an outspoken advocate, and practitioner, of

physician-assisted suicide. His views and activities were the

focus of considerable controversy and media attention. John

Engler, then Michigan’s Governor, was an opponent of Dr.

Kevorkian and his views. In February of 1993, Governor

Engler signed legislation aimed at outlawing the physician-

assisted suicide activities of Dr. Kevorkian. Ona _ radio

show that month, Governor Engler advocated the disbarment

of Mr. Fieger to curtail the activities of Dr. Kevorkian. In

response to a caller’s question about what would stop Dr.

Kevorkian, Governor Engler publicly stated: “We probably

could stop him if his lawyer were disharred.” (App. 45a-46a

{ 20).

In March of 1992, Governor Engler appointed the Hon.

Clifford Taylor and Hon. Maura Corrigan to the Michigan

Court of Appeals. Both are now members of the Michigan

Supreme Court. In 1995 Governor Engler appointed Hon.

Steven Markman and Hon. Robert Young to the Michigan

Court of Appeals. Both have since become members of the

Michigan Supreme Court. In short, by 1995, four of the

members of the Michigan Supreme Court had been appointed

to appellate judgeships by a Governor who had publicly

advocated the disbarment of Mr. Fieger as a means to curtail

the activities of Dr. Kevorkian.

In 1996, Judge (now Justice) Corrigan, reacting to a

statement by Mr. Fieger which was critical of her, initiated a

Request for Investigation with the Michigan Attorney

Grievance Commission. This filing, made on official

government stationary, could have led to the disbarment of

Plaintiff's counsel. That Request has since been dismissed by

the Attorney Grievance Commission. (App. 47a 429).

In 1998, Mr. Fieger received the nomination of the

Democratic Party to run for the gubernatorial office held by

Governor Engler, who was re-nominated by the Republican

Party (App. 45a 4§ 17-18). During this time (and for some

time before) Lucille Taylor, the wife of Justice Taylor, served

as counsel to Governor Engler (App. 46a { 21). The 1998

campaign featured acrimonious insults between Mr. Fieger

and Governor Engler. When the dust settled, Governor

Engler was re-elected by a wide margin. Mr. Fieger has

never run for public office before or since the 1998

gubernatorial campaign.

In 2000, Justices Taylor, Markman and Young ran for re-

election. The Michigan Chamber of Commerce reportedly

provided over $3,000,000 in financial support to the

candidacies of these Justices (National Law Journal, 10/28/02,

p. A9; App. 44a 410). Among the ads for Justices Taylor,

Markman and Young paid for by the Michigan Chamber was

one which mentioned Mr. Fieger by name, and accused him

of using “specious legal reasons” to foster frivolous litigation

at the cost to taxpayers (App. 48a-49a 4§ 35-39).

Mr. Fieger was not a candidate for office in 2000.

Nonetheless, the Justices and their campaign supporters

publicly implied and announce opposition to Mr. Fieger

personally, depicting him as the enemy. Justice Markman

campaigned on the platform that he was personally an

opponent of attorneys like Mr. Fieger who represented

plaintiffs in medical malpractice cases. In a public statement

to a medical group, Justice Markman referred to attorneys like

Mr. Fieger (“the peop!c who quite frankly make a livelihood

by suing you”) as the opponents of himself and his fellow

Republican nominees (“our opponents”) (App. 47a 427).

Justice Young was even more unabashed about

characterizing the relationship with Mr. Fieger as one which

he regards as hateful, “Geoffrey Fieger and his trial lawyer

cohorts hate this court” Nor does Justice Young regret the

relationship he believes to be grounded in hate. On the

contrary, his avowed position is that, “There’s honor in that.”

(App. 46a { 26).

Justice Taylor also personalized the campaign, referring

to this case and others in which Mr. Fieger had obtained

substantial verdicts for his clients. It is reported that Justice

Taylor, at a fund-raiser, noted, “Geoffrey Fieger currently

has $90 million of lawsuit awards pending in the State Court

of Appeals.”

The three Justices also attacked Mr. Fieger personally in

a radio advertisement in which they implied that Plaintiff’s

counsel supported the opposing candidates because of Mr.

Fieger’s attraction to vicious, false, degrading attacks on

them. They characterized the ads of the Democratic nominees

as “vicious”, “false”, “seedy”, a “smear campaign” and

“degrading the Court and the public confidence in Michigan’s

judiciary”, then stated that Mr. Fieger (who had nothing to do

with the ads in issue) supported their opponents for that very

reason, “Some people will do anything to get elected. No

wonder Geoffrey Fieger, Jesse Jackson [and others support

the Democratic candidates]”. The voices of Justices Young,

Markman and Taylor themselves can be heard at the end of

that advertisement. (App. 48a { 35).

Another instance of the “anti-Fieger” tone of the 2000

campaign of Justices Young, Markman and Taylor is the

“He’s back . . .” flyer distributed on behalf of these Justices.

The campaign literature features Mr. Fieger’s face,

characterizes the opposing candidates as “FIEGER’s

FRIENDS” and “the Fieger team”, and asserts that,

“Geoffrey Fieger [and others are] trying to take over

Michigan’s Supreme Court.” (App. 49a { 39).

Another piece of campaign literature distributed on behalf

of Justices Taylor, Markman and Young was entitled, “Our

police make critical judgements each day.” That literature

criticized the opposing candidates as “Geoffrey Fieger’s

friends.” (App. 49a { 40).

Yet another piece of literature characterized Judge

Fitzgerald, the Democratic candidate, as a “Geoffrey Fieger

libera[l].” The literature was entitled, “Forever isn’t long

enough for a child molester,” implying that Mr. Fieger

supported the sexual abuse of children. (App. 49a 41).

A significant feature of the 2000 campaign for Justices

Young, Taylor and Markman was to depict Mr. Fieger as a

person who had acquired wealth by bringing lawsuits that

were without substantive merit. In addition to Justice

Markman’s (“people who . . . make a livelihood by suing

you”) reference and the (“Geoffrey Fieger . . . $90 million of

lawsuit awards”) comment of Justice Taylor, a March 3, 2000

press release criticizing Ms. Robinson (a Democratic

nominee) identified her as favored by “a multi-millionaire

trial lawyer” who, if elected, would allow “trial lawyers like

Geoff Fieger [to] keep getting richer while Michigan families

keep footing the bill.” (App. 49a { 42).

The statements discussed above by and on behalf of

Justices Young, Markman and Taylor accomplished their

goal. All three were elected in 2000.

On July 30, 2002, the Michigan Court of Appeals

affirmed the Judgment for the plaintiff in Linda Gilbert v.

Daimler Chrylser Corp., Michigan Supreme Court Docket

No. 122457. Defendant Daimler Chrysler filed an

Application for Leave to Appeal to the Michigan Supreme

Court. At this point, the United States and Michigan

Chambers of Commerce, requested, and were allowed to file

Amicus brief on behalf of Daimler Chrysler. At about the

same time, Justices Weaver and Young were running for re-

election to the Michigan Supreme Court. The Michigan

Chamber of Commerce financed a television campaign

endois.ig Justices Weaver and Young.

To Petitioners knowledge, there is no reported case in

United States history in which a judge, when face with the

avalanche of documented bias, has refused to recuse himself.

As a result, the Amedures were denied Due Process of Law.

LAW AND ARGUMENT

I. THE MOTION FOR RECUSAL SHOULD

HAVE BEEN GRANTED AND THE FAILURE

TO DO SO AMOUNTED TO A

DEPRIVATION OF DUE PROCESS OF LAW

UNDER THE FOURTEENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

It is extraordinary and unprecedented for Justices of a

state’s highest court and their supporters to express publicly,

virulently, and repeatedly the personal animosity expressed

toward Plaintiff's counsel, Mr. Fieger. There has never

before in reported history been enmity which is so personal

and well-documented.

A. Overview

It is commonly said that ours is a system of law, not of

men or women. That ideal reflects the profound truth that the

most fundamental feature of American justice is that it is

administered by those having no interest, or apparent interest,

in the outcome. Talbert v Muskegon Construction Co, 305

Mich. 345, 348, 9 N.W.2d 572 (1943).

An impartial judiciary is of obvious importance to the

litigants and attorneys whose cases are adjudicated. This

interest is recognized by the core precept of constitutional law

that the Due Process Clause guarantees an impartial decision-

maker. People v Lowenstein, 118 Mich. App. 475, 482-483,

325 N.W.2d 462 (1982) (“The right to a fair tribunal is a

right grounded in due process”).

The rights of parties and counsel, weighty as they may be,

are not the only interests implicated. Canon 2A of the

Michigan Code of Jucicial Conduct demands that Judges

“avoid all impropriety and appearance of impropriety” to

foster “[p]ublic confidence in the judiciary.” Canon 2B calls

upon judges to “promote public confidence in the integrity

and impartiality of the judiciary.” The Michigan Supreme

Court itself has even recognized that a judge’s failure to

recuse himself when required constitutes sanctionable judicial

misconduct. Jn re: Waterman, 461 Mich. 1207, 625

N.W.2d 748 (1999). Judicial fairness, and the appearance of

fairness, are essential to the public confidence from which the

rule of law derives its legitimacy.

The federal grounds for judicial disqualification are

statutory. Liteky v United States, 510 U.S. 540, 114 S.Ct.

1147, 127 L.Ed.2d 474, 483-487 (1994). Under the federal

Statutes, disqualification is in order, inter alia, where a party

shows “that the judge before whom the matter is pending has

a personal bias or prejudice either against him or in favor of

an adverse party” 28 U.S.C. § 144] or where the judge “has

a personal bias or prejudice concerning a party” [28 U.S.C.

§ 455(b)(1)]. The goal of § 455 is “to avoid even the

appearance of partiality.” Liljeberg v Health Services Corp,

486 U.S. 847, 860-861, 108 S.Ct. 2194, 100 L.Ed.2d 855,

867 (1988). The federal statutes have been regarded as

probative of the meaning of Michigan’s MCR 2.003. Cain v

Department of Corrections, supra 451 Mich. at 495-496.

In Michigan, the issue of disqualification is addressed by

court rule rather than statute. The grounds for

disqualification are spelled out in Michigan’s Rules of Court,

MCR 2.003(B), which states in relevant part.

“A judge is disqualified when the judge cannot

impartially hear a case, including but not limited to

instances in which:

(1) The judge is personally biased or

prejudiced for or against a party or

attorney.

* * *

(5) The judge knows that he or she. . . has an

economic interest in the subject matter in

controversy or in a party to the proceeding or

has any other more than de minimis interest

that could be substantially affected by the

proceeding” (emphasis supplied).

While reported decisions about the recusal of Michigan

Supreme Court Justices are rare, in People v Brown, 429

Mich. 877, 415 N.W.2d 864 (1987), Justice Dennis Archer

recused himself, citing Rule 2.003. In Brown, the basis for

recusal was that, in the recent past, counsel for a litigant had

been “of counsel” to Justice Archer’s law firm. That

attenuated relationship, without more, was thought to make it

inappropriate for Justice Archer to consider the merits of the

appeal, even though he had participated in considering the

Application. The grounds in this case are far more indicative

of partiality than those which resulted in recusal in Brown.

B. The “Appearance” Standard

It is sometimes said that disqualification is not required

absent “actual” prejudice. See e.g. Cain, 451 Mich. at 495;

Park v American Casualty Ins Co, 219 Mich. App. 62, 78,

555 N.W.2d 720 (1996) (Corrigan J, concurring) (noting that

an arbitrator’s strategic suggestion might require

disqualification). However, this does not mean that the

outcome is resigned to a judge’s pronounced subjective view

of his or her own fairness.

If the judge’s own assessment were the sole test, there

would be no need for the review permitted by Rule

2.003(C)(3)(a). Indeed, such a view would allow the most

partisan judge to malevolently implement bias by merely

denying its existence.

In North Dakota v Johnson, 55 N.D. 437, 442, 214N.W.

39, 40 (1927), the Court explained, regarding disqualification

of a grand juror:

“ [W]hat he may say about his lack of prejudice or

bias must be considered in the light of our human

experience. We know, if we stop to think about it,

that the last thing in the world we will admit, even to

ourselves, is bias or prejudice against another. We

may not like him, or may hate him heartily, yet as we

are always in the right about it, we have no bias or

prejudice against him. We are always confident that

we can treat him fairly, considering that he is bound

to be in the wrong... .”.

Thus, while cases have sometimes articulated the words

“actual prejudice” in principle, they have also recognized, in

practice, that it is necessary to look to the particular

circumstances to determine whether an objective observer

might reasonably question the judge’s impartiality. Liteky,

127 L.Ed.2d at 486; Cain, 451 Mich. at 495, fn. 29 (defining

bias or prejudice in terms of what “a fair-minded person could

not entirely set aside when judging certain persons or causes” )

512-513, fn. 48, 514 (the due process inquiry “requires a

case-by-case determination of when the risk of actual bias is

too prevalent”); /reland v Smith, 214 Mich. App. 235, 250,

542 N.W.2d 344 (1995).

C. Extrajudicial Bias or Prejudice

Recusal is ordinarily not a remedy for adverse judicial

decisions, but is the relief where prejudice or bias is

“personal” and arises from an “extrajudicial source.” Liteky,

127 L.Ed.2d at 483-491. This case involves the classic

disqualification paradigm: events outside the scope of this

case which may cause certain Justices not to provide

Petitioner with the impartial consideration to which she is

legally and constitutionally entitled, a classic case for recusal.

D. The Fourteenth Amendment Due _ Process

Guarantee

At its core, the Due Process Clause guarantees an

unbiased decision-maker. Cain, 451 Mich. at 497-502;

Crampton v Department of State, 395 Mich. 347, 351 (1975).

The Constitution requires disqualification without a showing

of “actual” bias, where “experience teaches that the

probability of actual bias is too high to be constitutionally

tolerable” Crampton, 395 Mich. at 351; Cain, 451 Mich. at

498; Withrow v Larkin, 421 U.S. 35, 46-47, 95 S.Ct. 1456,

43 L.Ed.2d 712 (1975).

Cain and Crampton have identified certain specific

situations where recusal is constitutionally required. One

such situation is where the judge “has been the target of

personal abuse or criticism from the party before him” , Cain,

451 Mich. at 498; Crampton, 395 Mich. at 351; Withrow, 421

U.S. at 47, n. 15; Mayberry v Pennsylvania, 400 U.S. 455,

91 S.Ct. 499, 27 L.Ed.2d 532 (1971).

Another constitutionally required ground for

disqualification is where the judge “has a pecuniary interest

in the outcome.” Crampton, 395 Mich. at 351; Cain, 451

oeieiieiieeimeienieiiieiee ieee aad

Mich .at 498; Ward v Monroeville, 408 U.S. 57: 94 S.Ct. 80;

23 L.Ed.2d 267 (1972).

A third basis for constitutional disqualification is when the

judge is “enmeshed in [other] matters involving [the

movant]”, Crampton, 395 Mich. at 351; Cain, 451 Mich. at

498; Johnson v Mississippi, 403 U.S. 212; 91 S.Ct. 1778; 29

L.Ed.2d 423 (1971).

These are not the exclusive constitutional criteria. The due

process standard for disqualification applies whenever the

circumstances are such that “the probability of actual bias is

too high to be constitutionally tolerable.”

E. Recusal was warranted under either State or

Constitutional standards.

1. The Statements And Conduct In Issue,

Viewed Independently and Collectively,

Warrant The Recusal of Justices

Corrigan, Taylor, Markman, Young and

Weaver.

There are a number of facts and circumstances which,

individually and collectively, warrant recusal. These include

the historic enmity between Plaintiff's counsel, Mr. Fieger,

and Governor Engler, who appointed the four Justices to

appellate judgeships. Justice Young, who has publicly

proclaimed a “hate” relationship with Plaintiff's counsel,

should recuse himself on that basis. Similarly, the antipathy

toward Plaintiff's counsel by Chief Justice Corrigan, who

unsuccessfully sought professional discipline against him,

warrants her recusal. The campaign literature of Justices

Markman, Young and Taylor attacked Plaintiff’s counsel.

These Justices, or their campaigns, have publicly taken the

position that most litigation is frivolous and that Plaintiff's

counsel uses specious arguments. Finally, these Justices have

taken public positions regarding Mr. Fieger’s financial affairs

and his economic interest in this case, and should have

recused themselves for that reason as well.

2. The Magnitude Of The Public Campaign

Benefit Warrants Recusal.

Given the reality of political judicial campaigns, donations

to or on behalf of a judge’s candidacy do not necessarily

require recusal. Active involvement in fundraising presents

a more difficult issue [compare Armstrong v Ypsilanti, 248

Mich. 573, 500, 640 N.W.2d 321(2001)(past fundraising for

judge does not require recusal) with People v Brown, supra

(statement of Justice Archer suggesting that a judge’s

participation in fundraising for a litigant may require

disqualification)]. In general, the prevailing view is that

campaign contributions are relevant to the disqualification

calculus, do not necessarily lead to recusal, but may require

recusal where the amount is extraordinary. See Ex Parte

Bryant, 675 So.2d 552 (Ala. Crim. App., 1996).

- Here, the economic benefit to Justices Taylor, Young,

Weaver and Markman from the millions of dollars contributed

by the Michigan Chamber of Commerce to their campaigns

vastly exceeds the amount of any other contribution. The

payments were made in the context of a campaign which

urged voters to elect Justices Markman, Young and Taylor to

oppose Mr. Fieger personally and to protect businesses

against lawsuits which were mostly “frivolous” (see

argument, infra).

On the most benign level, those aspiring to be Supreme

Court Justices necessarily have a strong desire to attain that

office - - the campaign rigors and unkind criticisms they

undergo attest to that desire. Just as obviously, it is the most

basic human nature to be profoundly grateful to, and wish to

reciprocate the kindness of, an interested party whose massive

payments have enabled a Justice to attain his or her seat. The

Justices in this case should have recused themselves from

ruling on a multi-million dollar verdict obtained by the very

poster-child of their animosity, Geoffrey Fieger

3. Justices Taylor, Corrigan, Young And

Markman May Harbor Bias Or

Prejudice Against Plaintiff’s Counsel

Arising Out Of The Acrimonious

Controversies Between Mr. Fieger

And Governor Engler, And Their

Respective Political Allies, Including

The Debate Over Physician-Assisted

Suicide And The 1998 Gubernatorial

Campaign.

Michigan has a strange system of eiecting Supreme Court

Justices to an office that is supposed to be free of partisan

influence. In reality, that System - - by which candidates are

nominated by political parties and are dependent on campaign

contributions - - is one fraught with the risk of judicial

partisanship.

Justices Taylor, Corrigan, Young and Markman owe their

judgeships, at least at the outset, to Governor Engler. The

understandable human reaction must be one of gratitude and

a sense of allegiance to the person singly responsible for the

awesome judicial power.

This case involves far more than the inevitable difference

in political views that may arise when a litigant is represented

Iam ANA OER RU Se NENG AD Nis ap ARI hie a> ee i

by counsel of a political party different than that of a

Governor who appointed Judges or Justices. Rather, it

involves intense, regrettably personal, enmity. While the

mutual disrespect between Governor Engler and Mr. Fieger

does not inherently require the recusal of Judges or Justices

appointed by the former Governor, it does provide the

backdrop to animosity that far transcends simple, and civil,

political disagreements.

It is unknown what, if anything, Governor Engler may

have said to his appointees about Plaintiff’s counsel. What is

known is the close relationship between Justice Taylor and

Governor Engler. Chief Justice Corrigan has not been

removed from the Fieger-Engler clash over Dr. Kevorkian.

Her own ‘ate husband was openly critical of Plaintiff's

counsel. .t is understandable that she may share in the

sentiments expressed by Mr. Grano.

Both the Michigan Court Rules and Fourteenth

Amendment seek to prevent a litigant’s rights from resting in

the hands of a decision-maker predisposed against that litigant

or her representative. In Cain,451 Mich. at 49, fn. 29, the

Court discussed the meaning of “bias or prejudice”:

“Bias or prejudice has been defined as ‘an attitude or

state of mind that belies an aversion or hostility of a

kind or degree that a fair-minded person could not

entirely set aside when judging certain persons or

causes.’ United States v Conforte, 624 F.2d 869, 881

(9" Cir., 1980.)”

Under any circumstances, a fair-minded person who owes

his or her judgeship to Governor Engler would be hard-

pressed to “entirely set aside” “hostility” when judging a case

brought by Mr. Fieger whose enmity with Governor Engler

has been so public and virulent. Neither justice nor its

appearance is served by resigning Plaintiff’s fate to decision-

makers who harbor that attitude toward Plaintiff’s attorney.

4. Justice Young Should Have Recused

Himself Because Of The Perceived

“Hate”Relationship With lr. Fieger

In Which He Finds “Honor.”

Justice Young has publicly proclaimed his belief that

Plaintiffs counsel, Mr. Fieger, hates him. He has expressed

the “honor” he finds in a relationship characterized by hate.

Feelings toward Plaintiff’ s counsel as overwhelming as “hate”

make it inappropriate for Justice Young to sit in judgment of

this case, or any other case involving jury verdicts obtained

by the “object” of this “hate.” That is true both under the

Fourteenth Amendment standard or Rule 2.003(B)

(1)(“personally biased or prejudiced . . . against [an]

attorney”).

Justice Frankfurter has observed, “Where there is ground

for believing that . . . unconscious feelings may operate in the

ultimate judgment, or may not unfairly lead others to believe

they are operating, judges recuse themselves . . .” Public

Utilities Commission of DC v Pollak, 343 U.S. 451, 466, 72

S.Ct. 813, 96 L.Ed 1068 (1952). Surely Petitioner can only

believe “not unfairly” that she cannot receive the totally

impartial consideration of a Justice who regards his

relationship with her attorney as hateful.

Similar sentiments were expressed in People v Lobsinger,

64 Mich. App. 284, 289-290, 235 N.W.2d 761(1975), where

the trial judge acknowledged a measure of animus against the

accused which, the court was certain, would not cloud his

judgment. Even so, the Court of Appeals concluded that

recusal was appropriate, noting:

“A judge is not expected to bring with him to the

bench a blank mind and personality, as he becomes,

by necessity, a composition of the general experiences

of his life, refined and honed by his legal training and

legal experience so that the desired judicial

temperament will hopefully emerge... It is his duty

not to permit these prejudices to override his

responsibilities in providing a fair forum for the

determination of controversy. This duty should ideally

motivate the judge to request reassignment of the case

if he is aware of any prejudices which he holds which

would interfere with his impartiality.”

The perceived “hate” involved in this case is much

stronger than the animus deemed to require disqualification in

Lobsinger. No lesser measure of relief should apply here.

There may be no objective reality to Justice Young’s

perception that he is hated by Plaintiff’s counsel. What is

important is that, rightly or wrongly, Justice Young perceives

himself as hated. One can scarcely be expected to maintain

impartiality in the face of an inter-personal relationship

expressed by the strongest word in the English language to

describe animosity.

Perhaps even more troubling is that Justice Young has no

regret about that perceived animosity. Instead of lamenting

the perceived hatred, he seemingly delights in it, believing it

an “honor” to be hated. The unmistakable implication is that

Justice Young is delighted to reciprocate, publicly no less, the

hate which he believes is directed toward him by Mr. Fieger.

tse Sole. Fe A eld FR

IIE OTL ste OP ERG an ~ A ED tS A,

en EOE NT PO Os AS FASE ie SIO Sa FP OES BI EOS

In other cases, the challenged judge regarded counsel as

a party with animosity that was not expressed in terms as

strong as “hate.” Even so, recusal has been deemed

appropriate where a clear animosity between the judge and

counsel exists. See e.g. Town Centre of Islamorada, Inc v

Overby, 592 So.2d 774 (Fla App, 1992); Tower Group, Inc

v Doral Enterprises, 760 So.2d 256 (Fla. App., 2000)

(counsel was judge’s opponent in an acrimonious campaign); !

Kentucky Journal Publishing Co v Gaines, 139 Ky. 747; 110

S.W .268 (1908) (political enmity and publicly announced

position required recusal); Ponder v Davis, 233 N.C. 699; 65

S.E.2d 356 (1951) (political activities adverse to the movant).

In Stephen v Natchez, 261 So.2d 486, 489 (Miss, 1972), the

trial judge expressed his belief that there was a “lot of

political motivation, revenge and hate in connection with this

lawsuit.” The imputation of hate was one of several factors

leading to the conclusion that the judge should have recused

himself.

At bottom, a fair minded suitor like Petitioner herein

cannot believe that her case will be fairly decided by a Justice

who deems it honorable to be hated (as he believes) by her

counsel. An objective observer would regard an emotion as

intense as hatred as preventing dispassionate judicial

consideration. | Because of these publicly announced

sentiments, Justice Young should have recused himself from

participation in this case.

‘Although Mr. Fieger was not literally the opponent of Justices

Taylor, Markman and Young, campaign literature disseminated on

their behalf treated him as their electoral adversary (see argument

infra).

5. Justice Corrigan Should Have Recused

Herself After Filing A Grievance Against

Plaintiff’s Counsel.

The existence of inter-personal animosity, or collateral

litigation ,between a judge and counse! has been frequently

regarded as calling upon a judge to ‘efrain from judging a

case of his or her adversary. Indeed, a judge who is

“enmeshed in other matters” involving the movant may be

regarded as constitutionally disqualified for that reason.

Johnson v Mississippi, 403 U.S. 212, 215, 91 S.Ct. 1778, 29

L.Ed.2d 423, 427 (1971); Crampton v Dept of State, 395

Mich. 347, 351, 235 N.W.2d 352 (1975); Cain, 451 Mich. at

498.

Prior Michigan cases iiave not directly addressed the

propriety of a judge sitting in a case where the judge has

previously initiated bar disciplinary proceedings against

counsel. In the converse setting (attorney formally filed a

Judicial Tenure Commission complaint against the judge),

divergent results have reached. Earlier cases reyarded a judge

as disqualified from hearing a case where counsel had

complained of the judge. Auto Workers Credit Union v

Kogler, 32 Mich. App. 257, 259, 188 N.W.2d 184 (1971).

More recent cases have rejected a per se rule of

disqualification under these circumstances. People v Bero,

168 Mich. App. 545, 552, 425 N.W.2d 138 (1988);

Czuprinski v Bay Judge, 166 Mich. App. 118, 126, 420

N.W.2d 141 (1988).

Had Mr. Fieger sought a Judicial Tenure Commission

investigation of Chief Justice Corrigan, these authorities

would suggest that recusal would not be automatic, but might

be appropriate. The same may be said of any criticisms or

insults about Chief Justice Corrigan that Mr. Fieger may have

— a

undertaken. That situation would raise the legitimate cenvern

that, regardless of the justness or unjustness of the accusations

leveled at her, Chief Justice Corrigan might understandably

be so offended at being attacked that her impartiality could be

called into question.

Notably, the rationales for the “no per se approach” have

application only to the “attorney complaining about judge”

context, and do not undermine the propriety of

disqualification in the converse context of this case. In

Czuprinski, the Court noted that the prior conduct - - a filing

by the lawyer - - was not indicative of the critical issue - - the

mindset of the judge (a grievance filed by counsel, “has no

tendency . . . to show actual bias or prejudice on the part of

the judge against the grievant”). Here, the pertinent conduct

is that of the judge, Chief Justice Corrigan, whose sentiments

can be determined from her own filing.

In practice, recusal in these situations has been the norm.

People v Gauntlett, 134 Mich. App. 737, 741-742, 760-761:

352 N.W.2d 310 1984) (recusal of judges who had filed a

grievance against counsel). There are several reasons why

that is the appropriate result here.

In 1993, Governor Engler had publicly suggested the

disbarment of Mr. Fieger as a means of ending the activities

of Dr. Kevorkian. Chief Justice Corrigan’s husband was an

outspoken critic of Dr. Kevorkian’s activities. After having

been appointed by Governor Engler, Chief Justice Corrigan

made the filing which could have resulted in the disbarment

of Mr. Fieger, as her sponsor had publicly discussed. The

inevitable appearance of these events is one of personal

animosity to Mr. Fieger arising from the spirited conflict

which pitted Mr. Fieger and Dr. Kevorkian against Governor

Engler, Chief Justice Corrigan, and her husband.

Even without the context provided by Governor Engler’s

call for disbarment, the filing of a Request of Investigation is

inherently personal in nature. Such a filing jeopardizes the

attorney’s ability to represent clients, pursue a chosen career,

or earn a livelihood. Feelings so intense that they motivate a

judge to attempt to destroy an attorney’s career undermine the

right to an impartial decision-maker.

It is also significant that the Request against Mr. Fieger

has been dismissed. If it had been sustained, one might at

least plausibly contend that a client whose attorney has been

professionally disciplined cannot complain about a meritorious

grievance filing. Here, however, no such contention can be

made. Indeed, the Attorney Grievance Commission’s

disinclination to pursue a grievance based on calling judges

names had been established by its decision not to pursue the

complaint about Governor Engler for his comments regarding

a Michigan Circuit Court Judge.

In the final analysis, Chief Justice Corrigan’s unsuccessful

efforts to have Plaintiff's counsel professionally disciplined

bespeaks a disqualifying bias or prejudice against him. Under

MCR 2.003, Chief Justice Corrigan should have recused

herself. That result is required under the Fourteenth

Amendment as well.

6. Justices Markman, Young and Taylor,

Whose Campaign Literature Attacked

Plaintiff’s Counsel, Should Have

Recused Themsetves.

In 2000, Mr. Fieger was not a candidate for politicai

office. Nonetheless, the campaign advertisements of Justices

Markman, Young and Taylor cast Plaintiff's counsel as their

opponent. This campaign approach raises two distinct bases

Se o, Oe ee

for recusal: the expression of personalized opposition to Mr.

Fieger, and the implicit public campaign promise that, if

elected, they will oppose Mr. Fieger’s perceived interests.

In fairness, it may be noted that these “anti-Fieger”

Statements were made by the party that nominated the Justices

rather than the Justices themselves. What is known is that the

Justices themselves personally participated in making

Plaintiff's counsel a target in the 2000 campaign. The voices

of Justices Young, Markman and Taylor were used in the

commercials. The professed belief of Justices Young,

Markman and Taylor that Plaintiff’s counsel relishes vicious,

false efforts to degrade the Court and erode public confidence,

on the basis of a campaign ad by the Democratic candidates

that Mr. Fieger had nothing to do with, conveys the disrepute:

in which Plaintiff's counsel is held by these Justices, a

disrepute that may be regarded as “bias” or “prejudice” in the

absence of any involvement by Mr. Fieger in the Democratic

ad that spawned the comments.

In State v Garner, 760 S.W.2d 893, 906 (Mo. App.,

1988), the court recognized how prior adverse statements are

inconsistent with the impartiality that is required:

“Conduct or speech of a trial judge indicative of a

belief as to the accused’s guilt is the antithesis of

impartiality. Acts or conduct [that] give the

appearance of partiality should be avoided with the

same degree of zeal as acts or conduct [that]

inexorably bespeak partiality.”

The Michigan Supreme Court has specifically addressed

how disparagement of counsel by a judge undermines public

confidence in the judiciary. In its unanimous decision in Jn re

Bennett, 403 Mich. 178, 193; 267 N.W.2d 914 (1978), the

Court observed:

“(Judge Bennett’s}] public disparagement of certain

attorneys, county commissioners, and the judicial

system itself, must have prejudiced and left many

doubtful of the impartiality and effectiveness of the

administration of justice in Branch County and in this

entire state. See /n the Matter of Del Rio, 400 Mich.

665, 256 N.W.2d 727 (1977);

For Justices Markman, Young and Taylor to sit in

judgment of this case after the public disparagement of Mr.

Fieger would “[leave] many doubtful of the impartiality . . .

of the administration of justice . . . in this entire state.”

That result should have been avoided by recusal.

7. Justices Markman, Taylor and Young,

On Whose Behalf Has Been Taken The

Position that Most Litigation is Frivolous

And That Plaintiff’s Counsel is

Responsible, Should Have Recused

Themselves.

The message of the “anti-Fieger” ads discussed above is

unmistakable: if voters elect Justices Young, Markman and

Taylor, they will thereby strike a blow against Mr. Fieger.

The way these Justices can fulfill their campaign theme is, of

course, to vacate a substantial verdict obtained by Plaintiff's

counsel, striking Mr. Fieger (and, not coincidentally, his

client) “where it hurts”, financially.

The fact that the position of these Justices has been

publicly taken gives rise to another, and related concern.

Their comments reflect a public position to which the Justices

have committed themselves, a position which this case

implicates, before the Application in this case was ever filed.

Canon 3 A(6) enjoins judges to refrain from advance

public comment on matters which may come before the court

(“A judge should abstain from public comment about pending

or impending proceedings in any court. . .”). The very

purpose of that prohibition is to assure open mindedness and

avoid the recusal that would be required by prejudgment.

The Court explained in Stretton v Disciplinary Board of

the Supreme Court of Pennsylvania, 944 F.2d 137, 142, 144

(3d Cir., 1991):

“If judicial candidates during a campaign prejudge

cases that later come before them, the concept of

impartial justice becomes a mockery. The idea of an

adjudication reached after a fair hearing, giving due

consideration to the arguments and evidence produced

by all parties no longer would apply and the

confidence of the public in the rule of law would be

undermined.”

“The public has the right to expect that a court will

make an assessment of the facts based on the evidence

submitted in each case, and that the law will be

applied regardless of the personal views of the judge.

Taking a position in advance of litigation would

inhibit the judge’s ability to consider the matter

impartially. Even if he or she should reach the correct

result in a given case, the campaign announcement

would leave the impression, if not in actuality, the

case was prejudiced rather than adjudicated through a

proper application of the law to facts impartially

determined.”

In the most literal sense, “prejudice” or pre-judging,

occurs when a judge has reached a conclusion about an issue,

or a case, even before that case has been presented to the

judge. The very essence of judicial impartiality requires that

the facts, briefs, arguments, and issues of a case are presented

before a judicial decision, tentative or final, is reached.

Judges who have reached conclusions about personalities,

cases, or issues even before receiving a single filing have ipso

facto engaged in the very pre-judgment which our system of

justice abhors. It is seemingly for this reason that it is

regarded as improper for judges or judicial candidates to

adopt or announce a position on issues that might later come

before the court

The disqualifying nature of judicial prejudgment is

compounded when it is announced publicly. The very act of

public announcement makes the existence of prejudgment

undeniable. Apart from the pernicious affect on the targeted

party anc counsel, public announcements bespeak an

insensitivity to the non-partisan nature of the judicial office.

Minimally, it draws the judiciary into disrespect when judges

or Justices publicly announce a pre-disposition to issues,

cases, parties, or attorneys who may, but have not yet, come

before them. The public announcement of a position regarding

a case or controversy before it has reached the judge for

decision can only be regarded as the “preiu’ se” which Canon

3 A(6) and Rule 2.003 seek to avert.

The impact is greater still when the pronouncements are

made during the course of a political campaign. Canon 3 A(1)

makes it clear that, “a judge should be unswayed by partisan

interests, public clamor, or fear of criticism.” The willingness

— a en mE a

soe otal

ns Oe ee

to make public statements suggesting a decisional

predisposition implies a desire to do what is perceived as

popular, what is likely to curry electoral favor, rather than

what the untainted legal merits, as they may later be

presented, might require. Campaigning on the implied

propensity to disfavor a particular attorney or class of

attorneys or litigants disqualifies one to decide cases of the

type the judge has publicly announced a position on.

On the most benign level, public statements, even outside

the electoral context, erect a hurdle to a later contrary

decision. Even this relatively benign impact was regarded

as cause for disqualification in /reland, 214 Mich. App. at

251:

“In our view, it would be unreasonable to expect the

trial judge to be able to put previously expressed

views out of his mind without substantial difficulty.

United States v Sears, Roebuck & Co, Inc, 785 F.2d

777 (9" Cir., 1986). We find that the advancement of

the interests of preserving the appearance of justice

and fairness outweigh other considerations here.

Accordingly, we reverse the trial court’s decision to

deny plaintiff's motion to disqualify and order this

case to be heard by a different judge on remand.”

The same result should follow here. Justices Markman,

Taylor and Young should have recused themselves.

8. The Expressed Positions Regarding Mr.

Fieger’s Financial Affairs, And His Economic

Interest in This Case, Provide An Additional

Basis For Recusal.

Two themes discussed above - - Mr. Fieger and his

economic interests in cases where he was trial counsel - -

have intersected in two more communications. By press

release of March, 2000, the Republican Party, which

nominated Justices Markman, Young and Taylor, castigated

Democratic candidate Marietta Robinson, once more drawing

Mr. Fieger into the fray. The release explicitly opposed Mr.

Fieger on economic grounds referring to a “multi-millionaire

trial lawyer like Geoff Fieger” and “ridiculous multi-million

dollar judgments that have ordinary folks wondering what has

gone wrong with our judicial system.” The release suggested

the tack - - embraced later in the campaign - - of appealing to

popular sentiment against financially successful advocates for

plaintiffs (“Multi-millionaire trial lawyers are not

‘mainstream’ Michigan”).

This theme was echoed in several other ads. Justice Taylor

used his campaign to publicize verdicts obtained by Mr.

Fieger, including the case of Linda Gilbert [“Taylor noted,

‘Geoffrey Fieger currently has $90 million of lawsuit awards

pending in the State Court of Appeals’]”. That campaign

reference includes the Gilbert case as well as the present case.

Other courts have confronted the situation where a case is

presented to a judge who has previously commented on it

publicly. Where that occurs, a judge is regarded as

disqualified. Ex Parte James, 713 So.2d 869 (Ala., 1997)

(trial judge disqualified from case on which he took a public

position); State ex rel Russa v Himes, 144 Fla. 145 (1940)

(judge who had publicly commented on the accused is

required to recuse himself from the case); Martin v State, 804

So.2d 360 (Fla. App., 2001) (public announcement of

intention prior to getting the case warrants recusal); Kentucky

Journal Publishing Co v Gaines, 139 Ky 747; 110 S.W. 268

(1908) (political enmity and publicly announced prior position

requires disqualification); McCullough v Davis, 147 P .779

(Okla., 1915) (judge disqualified from hearing case he had

publicly discussed in his campaign).

Conclusion

This case presents an unprecedented number of events and

statements. The bias aiid prejudice is manifest. The failure

of the Michigan Supreme Justices to recuse themselves

amounted to a denial of Petitioners’ right to a fair tribunal as

guaranteed by the due process clause of the Fourteenth

Amendment to the United States Constitution. Petitioners

respectfully request that this Court grant the petition for writ

of certiorari.

Respectfully submitted,

Geoffrey Nels Fieger

Counsel of Record

Fieger, Fieger, Kenney & Johnson, P.C.

19390 W. Ten Mile Rd.

Southfield, MI 48085

(248° 355-5555

(248) 355-5148 (Fax)

Counsel for Petitioners

Date: April 29, 2004

APPENDIX A

bh el -

SUPREME COURT OF MICHIGAN

Case No. SC:123104

[Decided January 30, 2004]

PATRICIA GRAVES and

FRANK AMEDURE, SR., as Personal

Representatives of the Estate of

SCOTT AMEDURE, Deceased,

Plaintiffs-Appeliants,

WARNER BROS.,

JENNY JONES SHOW, and TELEPICTURES,

jointly and severally,

Defendants-Appellees.

ON OO eee eae we

JUDGES: Weaver, J., not participating in the motion for

reconsideration of the denial of the motion to recuse Chief

Justice Corrigan and Justices Taylor, Young, and Markman

dissents.

OPINION:

On order of the Court, the motion for reconsideration of

this Court’s order of October 10, 2003, denying the motion

for recusal and evidentiary hearing, is considered, and it is

DENIED, because it does not appear that the order was

entered erroneously.

DISSENT:

Weaver, J., not participating in the motion for

reconsideration of the denial of the motion to recuse Chief

Justice Corrigan and Justices Taylor, Young, and Markman,

states: |

This Court denied leave to appeal in this case on July 17,

2003.' Subsequently, plaintiff filed both a motion for

rehearing and a motion requesting that Chief Justice Corrigan

and Justices Weaver, Taylor, Young, and Markman recuse

themselves from the appeai.

I concurred in the Court’s October 10, 2003, decision to

deny the motion for rehearing, and wrote separately to decide

the motion recuesting that I recuse myself.2 I denied

plaintiff's motion requesting that I recuse myself from the

case, on the grounds that “I am neither biased nor prejudiced

for or against any of the parties or their attorneys ‘n this case,

and plaintiff asserts no grounds supporting my iccusal from

participating in this appeal.” I did not participate in the

decision regarding the motion to recuse Chief Justice

Corrigan and Justices Taylor, Young, and Markman.

Plainiiff has now filed a motion for reconsideration of the

denial of plaintiff's motion for recusal and an evidentiary

' Graves v Warner Bros, 469 Mich. 853; 666 N.W.2d 665

(2003).

2 Graves v Warner Bros, 469 Mich.___ ; 669 N.W.2d 552

(2003).

bet eta te Ta

hearing. In the motion for reconsideration, _ plaintiff

specifically states that she does not seek reconsideration of my

decision not to recuse myself because I gave detailed reasons

for my decision.

But plaintiff does ask that I reconsider my decision not to

participate in deciding the motion for recusal as it relates to

Chief Justice Corrigan and Justices Taylor, Young and

Markman. I decline to do so. A challenged judge decides the

motion asking for his disqualification. MCR 2.003(C)(1)<3).

Therefore, I do not participate in the motiop for

reconsideration with regard to the other four justices, and I do

not decide whether or not my colleagues should grant the

motion for reconsideration and recuse themselves.

APPENDIX B

SUPREME COURT OF MICHIGAN

Case No. SC:123104

[Decided October 10, 2003]

PATRICIA GRAVES and

FRANK AMEDURE, SR., as Personal

Representatives of the Estate of

SCOTT AMEDURE, Deceased,

Piaintiffs-Appellants,

WARNER BROS.,

JENNY JONES SHOW, and TELEPICTURES,

jointly and severally,

Defendants-Appellees.

Nee eee eee eee eee" Ne”

JUDGES: Cavanagh and Kelly, JJ., would grant

reconsideration and, on reconsideration, would grant ieave to

appeal. Kelly, J., not participating in the decision regarding

the motion for recusal and for evidentiary hearing. Weaver,

J., not participating in the deci.ion regarding the motion to

recuse Chief Justice Corrigan and Justices Taylor, Young,

and Markman, denies the motion to recuse herself.

OPINION:

On order of the Court, the motion for reconsideration of

this Court’s order of July 17, 2003 is considered, and it is

DENIED, because it does not appear that the order was

entered erroneously. The motion for recusal and for an

evidentiary hearing is also considered, and it is DENIED.

Cavanagh and Kelly, JJ., would grant reconsideration

and, on reconsideration, would grant leave to appeal

Kelly, J., not participating in the decision regarding the

mvtion for recusal and for evidentiary hearing.

Weaver, J., not participating in the decision regarding the

motion to recuse Chief Justice Corrigan and Justices Taylor,

Young, and Markman, denies the motion to recuse herself,

concurs in the denial of the motion for rehearing, and states:

This Court denied leave to appeal in this case on July 17,

2003.' Subsequently, plaintiff filed a motion for rehearing

and a motion requesting that Chief Justice Corrigan and

Justices Weaver, Taylor, Young, and Markman recuse

themselves from this appeal.

I concur in the Court’s decision to deny the motion for

rehearing, and write separately to decide the motion

requesting that I recuse myself.

A challenged judge decides the motion asking for his

disqualification. MCR 2.003(C)(1)(3). Therefore, even

' Graves v Warner Bros, 469 Mich. 853; 666 N.W.2d 665

(2003).

though the plaintiff's motion a’:v asks for the recusal of Chief

Justice Corrigan and Justices ‘‘aylor, Young, and Markman,

the only issue before me is whether I should recuse myself

from participating in this appeal. I do not decide whether my

colleagues should recuse themselves or not.

Plaintiffs motion for recusal is based on the same grounds

alleged in the April 16, 2003 motion filed in Gilbert v

DaimlerChrysler, Docket No. 122457 to recuse the same

justices. But plaintiff recognizes that the ailegations pertaining

to the Michigan Chamber of Commerce participating as

amicus curiae in Gilbert v DaimlerChrysler do not apply in

this case.”

In requesting my recusal from the appeal in Gilbert v

DaimlerChrysler, plaintiff asserted only that the Michigan

Chamber of Commerce, which filed a brief as amicus in that

case, contributed to my campaign for reelection to the

Michigan Supreme Court in 2002 and aired advertisements

advocating my reelection.’ There are no allegations in either

Gilbert v DaimlerChrysler or this case that I made or caused

to be published any statements about any of the parties, their

> Footnote 1 in plaintiff's Motion for Recusal and for

Evidentiary Hearing, filed with the Court August 7, 2003, states:

“The only allegations in the Gilbert Motion for Recusal which do

not directly apply to the present case are those pertaining to the

Michigan Chamber of Commerce and it [sic] involvement in the

Gilbert case as Amicus Curiae.”

> For the full text of the allegations requesting my recusal, see

my statement of reasons for denying the motion for recusal in

Gilbert v DaimlerChrysler, 469 Mich. 880; 669 N.W.2d 265; 2003

Mich. LEXIS 2039 (2003).

attorneys, the amicus, or issues in the case that would raise

the issue of bias or prejudice on my part.

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. Accordingly, I deny plaintiff's motion requesting that

I recuse myself from this case.

APPENDIX C

SUPREME COURT OF MICHIGAN

Case No. SC:123104

[Decided July 17, 2003]

PATRICIA GRAVES and

FRANK AMEDURE, SR., as Personal

Representatives of the Estate of

SCOTT AMEDURE, Deceased,

Plaintiffs-Appellants,

WARNER BROS.,

JENNY JONES SHOW, and TELEPICTURES,

jointly and severally,

Defendants-Appellees.

ee A a ae ee ee ee oe a ee a

JUDGES: Cavanagh and Kelly, JJ., would grant leave to

appeal.

OPINION:

On order of the Court, the delayed application for leave

to appeal the October 22, 2002 judgment of the Court of

Appeals is considered, and it is DENIED, because we are not

persuaded that the questions presented should be reviewed by

this Court.

Cavanagh and Kelly, JJ., would grant leave to appeal.

10a

APPENDIX D

COURT OF APPEALS OF MICHIGAN

Case No. 226645

[Decided October 22, 2002]

PATRICIA GRAVES and

FRANK AMEDURE, SR., as Personal

Representatives of the Estate of

Scott Amedure, Deceased,

Plaintiffs-Appellees,

WARNER BROS.,

JENNY JONES SHOW, and TELEPICTURES,

jointly and severally,

Defendants-Appellants.

JUDGES: Before: Murphy, P.J., and Griffin and Meter, JJ.

Meter, J., concurred. MURPHY, P.J. (dissenting).

OPINION:

GRIFFIN, J.

Defendants appeal as of right from the entry of judgment

in the amount of $29,332,686 following the jury’s verdict in

plaintiffs’ favor in this wrongful death action. We reverse the

lla

judgment, vacate the court’s order, and remand for entry of

a judgment and order in favor of defendants, holding that

under the circumstances defendants owed no legally

cognizable duty to protect plaintiffs’ decedent from the

homicidal acts of a third party.

The instant case has its origins in the tragic murder of

plaintiffs’ decedent, Scott Amedure, in March of 1995 by

Jonathan Schmitz, who was ultimately convicted of second-

degree murder. The facts underlying the highly publicized

criminal case are set forth in this Court’s decision, People v

Schmitz, 231 Mich. App. 521, 523; 586 N.W.2d 766 (1998),

which addressed Schmitz’ original appeal of his murder

conviction:

This case arises from defendant’s killing of Scott

Amedure with a shotgun on March 9, 1995. Three

days before the shooting, defendant appeared. with

Amedure and Donna Riley in Chicago for a taping of

an episode of the Jenny Jones talk show, during which

defendant was surprised by Amedure’s revelation that

he had a secret crush on him. After the taping,

defendant told many friends and acquaintances that he

was quite embarrassed and humiliated by the

experience and began a drinking binge.

On the morning of the shooting, defendant found

a sexually suggestive note from Amedure on his front

door. Defendant then drove to a local bank, withdrew

money from his savings account, and purchased a 12-

gauge pump-action shotgun and some ammunition.

Defendant then drove to Amedure’s trailer, where he

confronted Amedure about the note. When Amedure

12a

just smiled at him, defendant walked out of the trailer,

stating that he had to shut off his car. Instead,

defendant retrieved the shotgun and returned to the

trailer. Standing at the front door, defendant fired two

shots into Amedure’s chest, leaving him with no

chance for survival. Defendant left the scene and

telephoned 911 to confess to the shooting.

Following a jury trial, Schmitz was found guilty of

second-degree murder and possession of a firearm during the

commission of a felony; however, this Court reversed the

conviction and remanded the case for a new trial on the basis

of an error concerning peremptory challenges and jury

selection. Schmitz, supra. On remand, Schmitz was again

found guilty of second-degree murder and felony-firearm and

sentenced to twenty-five to fifty years’ imprisonment for the

murder conviction. His conviction and sentence were affirmed

by this Court in People v Schmitz, unpublished opinion per

curiam of the Court of Appeals, issued January 22, 2002,

2002 Mich. App. LEXIS 71, (Docket No. 222834).

In the wrongful death action now before this Court,

plaintiffs Patricia Graves and Frank Amedure, Sr., as

personal representatives of the estate of Scott Amedure,

deceased, alleged that Schmitz shot and killed Amedure as a

direct and proximate result of the actions of the present

defendants, the Jenny Jones Show (the show), its owner,

Warner Bros., and its producer, Telepictures.' Plaintiffs

essentially contended that defendants “ambushed” Schmitz

' Jonathan Schmitz, the sole original defendant in this case

before plaintiffs amended their complaint to add the present

defendants, was dismissed from the suit as a result of a settlement

agreement.

13a

wher they taped the episode of the show in question,’

intentionally withholding from Schmitz that the true topic of

the show was same-sex crushes and never attempting to

determine, before the show, the effect the ambush might have

on Schmitz. Plaintiffs alleged that defendants knew or should

have known that their actions would incite violence, with the

sole purpose of the show being the increase in television

ratings, and that defendants had an affirmative duty to prevent

or refrain from placing plaintiffs’ decedent in a position that

would unnecessarily and unreasonably expose him to the risk

of harm, albeit the criminai conduct of a third person.

Plaintiffs maintained that the show breached its duty and

foreseeably subjected plaintiffs’ decedent to an unreasonable

risk of harm, ultimately resulting in his death.

Defendants’ motions for summary disposition and a

directed verdict were denied by the trial court, which opined

that there were genuine issues of material fact regarding duty

and foreseeability, negligence, and causation. Following

extensive trial proceedings, a jury returned a verdict in

plaintiffs’ favor, and a judgment was subsequently entered

thereon awarding plaintiffs $29,332,686 in damages. The trial

court denied defendants’ posttrial motion for judgment

notwithstanding the verdict or, in the alternative, a new trial

or remittitur. Defendants new appeal.

In defendants’ first issue on appeal, we are confronted

with the cornerstone of this case - whether defendants owed

a duty to plaintiffs’ decedent to protect him from harm caused

by the criminal acts of a third party, Jonathan Schmitz.

? The taped se ment was never broadcast.

ped seg

meee

l4a

Defendants argue that they owed no such duty and that the

trial court erred in denying defendants relief as a matter of

law where plaintiffs failed to show a duty to prevent Schmitz’

violent conduct. We agree.

Motions foi; summary disposition, a directed verdict, and

judgment notwithstanding the verdict are reviewed de novo.

Badalamenti v Beaumont Hosp, 237 Mich. App. 278, 284;

602 N.W.2d 854 (1999), Meagher v Wayne State Univ, 2272

Mich. App. 700, 708; 565 N.W.2d 40) (1997); Turner v

Mercy Hosps & Health Services of Detroit, 210 Mich. App.

345, 348; 533 N.W.2d 365 (1995); Jenkins v Southeastern

Michigan Chapter, American Red Cross, 141 Mich. App.

785, 792; 369 N.W.2d 223 (1985).

A motion under MCR 2.116(C)(1G) tests the factual

sufficiency of the complaint. Under subsection C(10), a trial

court considers affidavits, pleadings, depositions, admissions,

and other evidence submitted by the parties, MCR

2.116(G)(5), in the light most favorable to the party opposing

the motion. The trial court should grant the motion if the

affidavits or other documentary evidence show that there is no

genuine issue regarding any material fact and the moving

party is entitled to judgment as a matter of law. MCR

2.116(C)(10), and (G)(4). Maiden v Rozwood, 461 Mich.

109, 120; 597 N.W.2d 817 (1999); Quinto v Cross & Peters

Co, 451 Mich. 358; 547 N.W.2d 314 (1996).

In reviewing a trial court’s decision on a motion for a

directed verdict, this Court must examine the evidence and all

reasonable inferences that may be drawn from it in a light

most favorable to the nonmoving party. Clark v Kmart Corp,

465 Mich. 416, 418; 634 N.W.2d 347 (2001); Mason v Royal

Dequindre, Inc, 455 Mich. 391, 397; 566 N.W.2d 199

(1997). Only if the evidence so viewed fails to establish a

1Sa

claim as a matter of law should the motion be granted Clark,

supra 465 Mich. at 418-419. The same standard appiies in

reviewing motions for judgment notwithstanding the verdict.

Orzel v Scott Drug Co, 449 Mich. 550, 557-558; 537 N.W.2d

208 (1995).

Questions about whether a duty exists are for the court to

decide as a matter of law. Mason, supra; Murdock v Higgins,

454 Mich. 46, 53; 559 N.W.2d 639 (1997); Scett v Harper

Recreation, Inc, 444 Mich. 441, 448; 506 N.W.2d 857

(1993). The fundamental principles concerning the threshold

issue of duty in a negligence action are well established and

have been set forth in detail on numerous occasions by our

courts. See, generally, Case v Consumers Power Co, 463

Mich. 1, 6; 615 N.W.2d 17 (2000); Maiden, supra;

Murdock, supra; Buczkowski v McKay, 441 Mich. 96, 100-

101; 490 N.W.2d 336 (1992); Friedman v Dozerc, 412 Mich.

1, 22; 312 N.W.2d 585 (1981): Moning v Alfono, 400 Mich.

425, 437; 254 N.W.2d 759 (1977); Krass v Tri-County

Security, Inc, 233 Mich. App. 661, 667-668; 593 N.W.2d

578 (1999); Baker v Arbor Drugs, Inc, 215 Mich. App. 198,

203; 544 N.W.2d 727 (1996). Briefly reiterated, a negligence

action may be maintained only if a legal duty exists that

requires the defendant to conform to a particular standard of

conduct in order to protect others against unreasonable risks

of harm. Maiden, supra at 131-132. This analysis requires a

determination whether the relationship of the parties is the

sort that a legal obligation should be imposed on one for the

benefit of another. /d.; Friedman, supra. In determining

whether a duty exists, courts examine different variables,

including

foreseeability of the harm, existence of a relationship

between the parties involved, degree of certainty of

injury, closeness of connection between the conduct

16a

and the injury, moral blame attached to the conduct,

policy of preventing future harm, and the burdens and

consequences of imposing a duty and the resulting

liability for breach. [ Krass, supra at 668-669.

See also Buczkowski, supra at 100-101; Terry v Detroit, 226

Mich. App. 418, 424; 573 N.W.2d 348 (1997).

Of particular import to the present appeal is the principle

that, in general, there is no legal duty obligating one person

to aid or protect another. Krass, supra at 668. Moreover, an

individual has no duty to protect another from the criminal

acts of a third party in the absence of a special relationship

between the defendant and the plaintiff or the defendant and

the third party. Murdock, supra at 54; Buczkowski, supra ai

103-104; Smith v Jones, 246 Mich. App. 270, 275; 632

N.W.2d 509 (2001); Krass, supra at 668-669; Marcelletti v

Bathani, 198 Mich. App. 655, 664; 500 N.W.2d 124 (1993).

The rationale underlying this general rule is the fact that

“[c]riminal activity, by its deviant nature, is normally

unforeseeable.” Papadimas v Mykonos Lounge, 176 Mich.

App. 40, 46-47; 439 N.W.2d 280 (1989). Our Court in

Papadimas, id. at 47, quoting Prosser & Keeton, Torts (Sth

ed), § 33, p 201, emphasized that “‘[{uJnder all ordinary and

normal circumstances, in the absence of any reason to expect

the contrary, the actor may reasonably proceed upon the

assumption that others will obey the criminal law.’” As

further explained by our Supreme Court in Williams v

Cunningham Drug, 429 Mich. 495, 498-499; 418 N.W.2d

381 (1988),

In determining standards of conduct in the area of

negligence, the courts have made a distinction

between misfeasance, or active misconduct causing

personal injury, and nonfeasance, which is passive

17a

inaction or the failure to actively protect others from

harm. The common law has been slow in recognizing

liability for nonfeasance because the courts are

reluctant to force persons to help one another and

because such conduct does not create a new risk of

harm to a potential plaintiff. Thus, as a general rule,

there is no duty that obligates one person to aid or

protect another.

Social policy, however, has led the courts to

recognize an exception to this general rule where a

special relationship exists between a plaintiff and a

defendant. . . . The rationale behind imposing a duty

to protect in these snecial relationships is based on

control. In each situation one person entrusts himself

to the control and protection of another, with a

consequent loss of control to protect himself. The duty

to protect is imposed upon the person in control

because he is best able to provide a place of safety.

See also Ross v Glaser, 220 Mich. App. 183, 186-187; 559

N.W.2d 331 (1996); Restatement of Torts, 2d, § 315, p 122.

“Such a special relationship must be sufficiently strong to

require a defendant to take action to benefit the injured

party.” Murdock, supra at 54. Examples of the requisite

“special relationship” recognized under Michigan law include

a common carrier that may be obligated to protect its

passengers, an innkeeper his guests, an employer his

employees, owners and occupiers of land their invitees, a

doctor his patient, and business invitors or merchants their

business invitees. /d.; Buczkowski, supra at 103-104; ;

Krass, supra at 670-671; Marcelletti, supra at 664; Bell &

Hudson, PC v Buhl Realty Co, 185 Mich. App. 714, 718; 462

N.W.2d 851 (1990); Moore v St. Joseph Nursing Home, Inc,

18a

184 Mich. App. 766, 768; 459 N.W.2d 100 (1990). In this

context, our courts have established a duty of reasonable care

toward only those parties who are “’readily identifiable as

-[being] foreseeably endangered.’” Mason, supra at 398,

quoting Murdock, supra at 58. See also Jenks v Brown, 219

Mich. App. 415, 421; 557 N.W.2d 114 (1996); Marcelletti,

supra at 665. As the Mason Court noted, “‘Readily’ is

defined as ‘promptly; quickly; easily.’” Mason, supra at 398,

quoting The Random House College Dictionary (rev ed).

In its most recent pronouncement in this regard, our

Supreme Court, in MacDonald v PKT, Inc, 464 Mich. 322;

628 N.W.2d 33 (2001), revisited the issue of a merchant’s

duty to protect business invitees from the criminal acts of

third parties and substantially narrowed the scope of the duty

owed by a premises owner to his invitee. The plaintiff in

MacDonald brought an action against the defendant PKT, Inc.

(Pine Knob), for injuries suffered during a concert at the

defendant’s theater as a result of sod being thrown by other

concertgoers. She alleged that the defendant was negligent in

failing to provide proper security, failing to stop tie

performance when it should have known that continuing the

performance would incite the crowd, failing to screen the

crowd to eliminate intoxicated individuals, and by selling

alcoholic beverages. The Court held that merchants have a

duty to respond reasonably to situations occurring on their

premises that pose a risk of imminent and foreseeable harm to

identifiable invitees; however, the duty to respond is limited

to reasonably expediting the involvement of the police, and

there is no duty to otherwise anticipate and prevent the

criminal acts of third parties. The Court stated in pertinent

part:

To summarize, under Mason [v Royal Dequindre, Inc,

supra], generally merchants “have a duty to use reasonable

19a

care to protect their identifiable invitees from the foreseeable

criminal acts of third parties.” Id. at 405. The duty is

triggered by specific acts occurring on the premises that pose

a risk of imminent and foreseeable harm to an identifiable

invitee. Whether an invitee is readily identifiable as being

foreseeably endangered is a question for the factfinder if

reasonable minds could differ on this point. a See id. at 404-

405. While a merchant is required to take reasonable

measures in response to an ongoing situation that is taking

place on the premises, there is no obligation to otherwise

anticipate the criminal acts of third parties. Consistent with

Williams [v Cunningham, supra], a merchant is not obligated

to do anything more than reasonably expedite the involvement

of the police. We also reaffirm that a merchant is not required

to provide security guards or otherwise resort to self-help in

urder to deter or quell such occurrences. Williams, supra. [

MacDonald, supra at 338 (emphasis added). ]

The MacDonald Court, id. at 334, n 10, expressly

overruled that portion of Mason that indicated that a merchant

has a duty to take precautions against the criminal conduct of

third persons that may be reasonably anticipated. The Court

explained that

a merchant has no obligation generally to anticipate

and prevent criminal acts against its invitees. . . .[W]e

have never recognized as “foreseeable” a criminal act

that did not . . . arise from a situation occurring on

the premises under circumstances that would cause a

person to recognize a risk of imminent and foreseeable

harm to an identifiable invitee. Consequently, a

merchant’s only duty is to respond reasonably to such

a situation. To hold otherwise would mean that

merchants have an obligation to provide what amounts

to police protection... .

20a

A premises owner's duty is limited to responding

reasonably to situations occurring on the premises

because, as a matter of public policy, we should not

expect invitors to assume that others will disobey the

law. A merchant can assume that patrons will obey the

criminal law. See People v Stone, 463 Mich. 558,

565; 621 N.W.2d 702 (2001), citing Prosser &

Keeton, Torts (Sth ed), § 33, p 201; Robinson v

Detroit, 462 Mich. 439, 457; 613 N.W.2d 307

(2000); Buczkowski v McKay, 441 Mich. 96, 108, n

16; 490 N.W.2d 330 (1992); Placek v Sterling Hts,

405 Mich. 638, 673; 275 N.W.2d 511, n 18 (1979).

This assumption should continue until a specific

situation occurs on the premises that would cause a

reasonable person to recognize a risk of imminent

harm to an identifiable invitee. It is only a present

situation on the premises, not any past incidents, that

creates a duty to respond.

Subjecting a merchant to liability solely on the

basis of a foreseeability analysis is misbegotten.

Because criminal activity is irrational and

unpredictable, it is in this sense invariably foreseeable

everywhere. However, even police, who are specially

trained and equipped to anticipate and deal with

crime, are unfortunately unable universally to prevent

it. This is a testament to the arbitrary nature of crime.

Given these realities, it is unjustifiable to make

merchants, who not only have much less experience

than the police in dealing with criminal activity but are

also without a community deputation to do so,

effectively vicariously liable for the criminal acts of

third parties. 464 Mich. at 335 (emphasis in origina!

and added).

2la

MacDonald confirms the long-established rule that there

is no general duty to anticipate and prevent criminal activity

even where, unlike the present case, there have been prior

incidents and the site of the injury is a business premises.

Any duty is limited to reasonably responding to situatious that

occur on the premises and pose a risk of imminent and

foreseeable harm to identifiable invitees, and the duty to

respond is limited to contacting the police.

Logic compels the conclusion that defendants in this case

had no duty to anticipate and prevent the act of murder

committed by Schmitz three days after leaving defendants’

studio and hundreds of miles away. Here, the only special

relationship, if any, that ever existed between defendants and

plaintiffs’ decedent, or between defendants and Schmitz, was

that of business invitor to invitee. However, any duty ends

when the relationship ends, MacDonald, supra; Murdock,

supra at 54-55; Williams, supra; Restatement of Torts, 2d,

§ 314A, comment c, p 119, and in this instance the

invitor/invitee relationship ended on March 6, 1995, three

days before the murder, when Schmitz and Amedure

peacefully left the Chicago studio following the taping of the

episode. Because the evidence, even when viewed from a

perspective most favorable to plaintiffs, revealed no ongoing

special relationship at the time of the murder,’ defendants

* Plaintiffs argue that the special relationship between

defendants and Schmitz and Amedure did not end when Schmitz

and Amedure left the show. Plaintiffs analogize to a dramshop

action, in which a bar may be held liable for a drunk-driving

accident after improperly serving alcoholic beverages to a drunk

driver even though the driver at the time of the accident was no

longer on the premises. However, a dram shop action is statutory

in nature and involves serving liquor to a visibly intoxicated person.

22a

owed no duty to protect plaintiffs’ decedent from Schmitz’

violent attack on March 9, 1995. The present situation simply

cannot, under any reasonable interpretation of the

circumstances, be construed as involving an existing special

relationship that required defendants to respond to a risk of

imminent and foreseeable harm to an identifiable invitee on

the premises. MacDonald, supra. Consequently, the trial

court erred as a matter of law in denying defendants’ motions

for summary disposition, a directed verdict, and judgment

notwithstanding the verdict on the basis of lack of duty, an

essential element of any negligence action. Maiden, supra;

Buczkowski, supra.

Plaintiffs seek to characterize the case as one involving

misfeasance, alleging that it was reasonably foreseeable that

defendants’ conduct both in creating and taping an episode on

the topic of same-sex crushes and in actively creating a

volatile situation would cause Schmitz to murder Amedure. A

duty may be imposed in cases of alleged misfeasance where,

notwithstanding the general rule that criminal conduct is

unforeseeable as a matter of law, the third party’s criminal

conduct is a reasonably foreseeable consequence of the

defendant’s actions under the particular circumstances of the

case. See, generally, Williams, supra 429 Mich. at 498; Ross,

supra 220 Mich. at 187; Restatement of Torts, 2d, § 302B, p

88, and § 314A, p 118. However, here, we agree with

defendants that such a rationale is wholly unavailing. As

previously noted, “[{c]riminal activity, by its deviant nature,

is normally unforeseeable,” Papadimas, supra at 46-47, and

thus “‘[{uJnder all ordinary and normal circumstances, in the

absence of any reason to expect the contrary, the actor may

In this case, Schmitz was neither visibly upset nor dangerous during

the taping of the show.

3s" = 2

23a

reasonably proceed upon the assumption that others will obey

the criminal law.’” /d., quoting Prosser, § 33, p 201. This

case presents no exceptional circumstances warranting

departure from that general rule because the evidence at trial

disclosed no “reason to expect the contrary” here. Schmitz

gave every appearance of being a normal, well-adjusted adult

who consented to being surprised on the show by a secret

admirer of unknown sex and identity. The evidence of record

indicates that nothing in Schmitz’ demeanor, or in any of his

interactions with the show, put defendants on notice that he

posed a risk of violence to others.* Reasonable foreseeability

is a necessary prerequisite to any finding of a duty under

Michigan law. Buczkowski, supra; cf. Groncki v Detroit

Edison Co, 453 Mich. 644, 657; 557 N.W.2d 289 (1996)

(opinion by Brickley, C.J.). Viewed from a perspective most

favorable to plaintiffs, the evidence failed to establish a jury

question regarding whether it was reasonably foreseeable that

Schmitz would murder Amedure as the natural and probable

* In this regard, the present case differs substantially from Ross,

supra, in which a divided panel of this Court found a duty to

protect against the criminal acts of a third party based on a theory

of misfeasance. The Ross majority focused on the defendant’s actual

knowledge that his son suffered from chronic mental problems and

of a history of conflicts between his son and some neighbors. In

those circumstances, the defendant’s decision to hand his son a

loaded gun at the moment one such conflict was flaring up was

found to entail a foreseeable risk of injury. /d. 220 Mich. at 188.

The Ross Court expressly distinguished Buczkowski, supra, on the

ground that in Buczkowski, as here, “there was no evidence that the

customer acted in a threatening manner or was legally

incompetent.” 220 Mich. App. at 189. The Court also relied on the

“proximity in time between defendant’s conduct and the shooting,”

id., explaining that the shooting occurred “just minutes after

defendant handed [his son] a loaded gun,” 220 Mich. App. at 193,

not days later and a long distance away as in the instant case.

24a

result of the events on the show. Accordingly, the trial court

should have ruled that the murder was not foreseeable as a

matter of law and entered judgment in favor of defendants.

See Buczkowski, supra at 108, n 16 (emphasizing that because

there was no evidence of actual notice of “abnormal

behavior,” the “retailer [who sold ammunition to an allegedly

intoxicated person] was entitled to proceed on the assumption

that the purchaser would obey the criminal law”), and

Johnson v Detroit, 457 Mich. 695, 712; 579 N.W.2d 895

(1998) (opinion by Mallett, C.J.) (“defendants could not have

suspected that the decedent [who committed suicide in a police

station holding cell by using exposed overhead bars that

originally had been covered with mesh but were exposed

because the mesh had been torn away and had not been

repaired despite knowledge of the problem by the police] was

suicidal. Consequently, there was no duty to prevent this

unforeseeable death.”). To impose a duty based on a

misfeasance theory under the circumstances at hand would

expand the concept of duty to limitless proportions.

Ill

Finally, to the extent the torts of misrepresentation and

intentional infliction of emotional distress were either pleaded

as alternative theories of recovery or incorporated into the

cause of action, over defendants’ objection, by the trial

court’s jury instructions, we conclude that such claims must

fail as a matter of law. Amedure’s estate cannot recover under

the separate tort of intentional misrepresentation, based on

defendants’ alleged statements to Schmitz, a third party. Hi-

Way Motor Co v International Harvester Co, 398 Mich. 330,

25a

336; 247 N.W.2d 813 (1976).° The elements of intentional

infliction of emotional distress are similarly lacking. See

Roberts v Auto-Owners Ins Co, 422 Mich. 594, 602; 374

N.W.2d 905 (1985). The mental distress that is the subject of

this case was allegedly inflicted on Schmitz, a nonparty to this

appeal, not on plaintiffs’ decedent. Therefore, this count could

not be sustained as a matter of law.

In sum, we conclude that defendants owed no duty as a

matter of law to protect plaintiffs’ decedent from the

intentional criminal acts of a third party, Jonathan Schmitz,

that occurred three days after the taping of the Jenny Jones

Show. While defendants’ actions in creating and producing

this episode of the show may be regarded by many as the

epitome of bad taste and sensationalism, such actions are,

under the circumstances, insufficient to impute the requisite

relationship between the parties that would give rise to a

legally cognizable duty. The trial court therefore erred in

denying defendants’ motions in this regard. Because we find

no antecedent duty, we need not address the other issues

raised by defendants on appeal. Accordingly, we reverse the

judgment, vacate the order, and remand to the trial court with

directions that it enter a judgment and order in favor of

defendants.

> Moreover, assuming the alleged misrepresentation was not a

separate cause of action but rather a manifestation of plaintiffs’

negligence claim, as already noted, no ongoing special relationship

existed between defendants and Amedure on the day of the

unforeseeable murder; thus, defendants owed no duty to prevent

Schmitz’ criminal conduct.

26a

Judgment reversed, order vacated, and case remanded. We do

not retain jurisdiction.

Meter, J., concurred.

/s/ Richard Allen Griffin

/s/ Patrick M. Meter

DISSENT: MURPHY, P.Jj. (dissenting).

I respectfully dissent from the majority’s opinion because

the issue of foreseeability concerning the shotgun slaying was

properly placed in the hands of the jury. Viewing the evidence

in «: light most favorable to plaintiffs, I believe that the issue

was properly left to the jury where the evidence indicated that

Jonathan Schmitz was humiliated and devastated on a show

scheduled to be broadcast! on rational television by

defendants through the revelation of a homosexual crush and

lurid sexual fantasy by Scott Amedure after Schmitz told

defendants that he did not want the crush to be that of another

man, and where defendants nonetheless proceeded with the

production of the show, using deceit, sensationalism, and

Outrageous behavior. I reach my conclusion taking into

consideration Schmitz’ personal history, which included

mental illness, alcohol and drug abuse, suicide attempts, anger

management problems, and sexual identity concerns.

Certainly, reasonable men and women could differ on whether

Schmitz’ violent act foreseeably resulted from defendants’

actions in manipulating and exploiting the lives, emotions, and

' Although the taped segment was never broadcast, presumably

because of the tragic event that unfolded, it is clear from the record

that Schmitz anticipated that it would be.

27a

sexual identities of individuals for the purpose of producing

their television talk show.”

The existence of a legal duty in a negligence action is a

question of law that this Court reviews de novo. Cipri v

Bellingham Frozen Foods, Inc. 235 Mich. App. 1, 14; 596

N.W.2d 620 (1999). However, where there are factual

circumstances that give rise to a legal duty, the existence or

nonexistence of those facts must be decided by a jury. Aisner

v Lafayette Towers, 129 Mich. App. 642, 645; 341 N.W.2d

852 (1983). Whether the risk of harm from third-party

criminal activity is foreseeable in a particular case is generally

a question of fact for the jury. Holland v Liedel, 197 Mich.

App. 60, 63; 494 N.W.2d 772 (1992). Although the question

of duty is ordinarily one of law to be decided by the court,

where a determination of duty depends on factual findings,

those findings must be found by the jury. 197 Mich. App. at

65.

Defendants’ arguments regarding duty arose below in the

context of defendants’ motions for summary disposition, a

directed verdict, and judgment notwithstanding the verdict

(JNOV). Each of those motions is reviewed de novo by this

Court. Spiek v Dep’t of Transportation, 456 Mich. 331, 337;

572 N.W.2d 201 (1998); Cacevic v Simplimatic Engineering

Co (On Remand), 248 Mich. App. 670, 679; 645 N.W.2d 287

? Although Schmitz first declined to appear on the show, he

subsequently decided to appear because, in part, he believed that

there was a chance he could meet the love of his life or get back

together with his ex-girlfriend.

28a

(2001); Morinelli v Provident Life & Accident Ins Co, 242

Mich. App. 255, 260; 617 N.W.2d 777 (2000).°

In Terry v Detroit, 226 Mich. App. 418, 424; 573

N.W.2d 348 (1997), this Court outlined the following general

principles concerning a negligence action:

In order to establish a prima facie case of

negligence, the plaintiff must prove: “(1) that the

defendant owed a duty to the plaintiff; (2) that the

defendant breached that duty; (3) that the defendant’s

breach of duty was a proximate cause of the plaintiff's

damages; and (4) that the plaintiff suffered damages.”

Baker v Arbor Drugs, Inc. 215 Mich. App. 198, 203;

544 N.W.2d 727 (1996). Duty is an obligation that the

defendant has to the plaintiff to avoid negligent

conduct. Jd. Whether a duty exists is a question of law

fer the court. Simko v Blake, 448 Mich. 648, 655;

532 N.W.2d 842 (1995). If a court determines as a

matter of law that a defendant owed no duty to a

* In evaluating a motion for summary disposition brought under

MCR 2.116(C)(10), a trial court considers affidavits, pleadings,

depositions, admissions, and other evidence submitted by the

parties, MCR 2.116(G)(5), in a light most favorable to the

nonmoving party. Maiden v Rozwood, 461 Mich. 109, 120; 597

N.W.2d 817 (1999). In a motion under subsection C(8), all factual

allegations in support of the claim are accepted as true and

construed in a light most favorable to the nonmoving pcrty. 461

Mich. at 119. The test for evaluating a motion for a directed verdict

and JNOV is identical. Smith v Jones, 246 Mich. App. 270, 273-

274; 632 N.W.2d 509 (2001). The evidence and all legitimate

inferences therefrom must be viewed in a light most favorable to

the nonmoving party. Wilkinson v Lee, 463 Mich. 388, 391; 617

N.W.2d 305 (2000).

29a

plaintiff, summary disposition is appropriate under

MCR 2.116(C)(8). Dykema v Gus Macker

Enterprises, Inc[,] 196 Mich. App. 6, 9; 492 N.W.2d

472 (1992).

In determining whether a duty exists, courts look

to different variables, including the (1) foreseeability

of the harm, (2) degree of certainty of injury, (3)

existence of a relationship between the parties

involved, (4) closeness of connection between the

conduct and injury, (5) moral blame attached to the

conduct, (6) policy of preventing future harm, and (7)

the burdens and consequences of imposing a duty and

the resulting liability for breach. Buczkowski [v

McKay, 441 Mich. 96, 101; 490 N.W.2d 330 (1992)],

citing Prosser & Keeton, Torts (Sth ed), § 53, p 359,

n 24; Baker, supra.

One of the initial difficulties in addressing the issues

presented in this case is the development of the proper

analytical framework. In Babula v Robertson, 212 Mich. App.

45, 52; 536 N.W.2d 834, n 2 (1995), this Court, quoting

Moning v Alfono, 400 Mich. 425, 437-438; 254 N.W.2d 759

(1977), stated:

““Duty’ comprehends whether the defendant is under

any obligation to the plaintiff to avoid negligent

conduct; it does not include--where there is an

obligation--the nature of the obligation: the general

standard of care and the specific standard of care. . . .

While the court decides questions of duty, general

standard of care and proximate cause, the jury decides

whether there is cause in fact and the specific standard

of care: whether defendants’ conduct in the particular

30a

case is below the general standard of care, including--

ualess the court is of the opinion that all reasonable

persons would agree or there is an overriding

legislatively or judicially declared public policy--

whether in the particular case the risk of harm created

by the defendants’ conduct is or is not reasonable.”

[Emphasis in original. ]

The Babula panel noted that the questions of duty and

proximate cause are interrelated because the question whether

there is the requisite relationship, giving rise to a legal duty,

and the question whether the cause is so significant and

important as to be regarded a proximate cause both depend in

part on foreseeability. Babula, supra at 53.

The first matter that needs to be addressed in properly

analyzing the duty issue is whether plaintiffs’ action is

premised on nonfeasance or misfeasance. I specifically

disagree with that portion of the majority’s opinion that

implicitly focuses on the concept of nonfeasance and the

necessarily incorporated principles concerning the duty to

protect and the necessity of a special relationship. Such an

analysis is inapplicable in this case, a case of misfeasance, not

nonfeasance.

In Ross v Glaser, 220 Mich. App. 183, 184-185; 559

N.W.2d 331 (1996), the personal representative of the

decedent’s estate brought suit against the father of an adult son

after the son, who had a history of mental illness, shot the

decedent with a gun provided by the father, which gun was

given to the son while he was in an agitated state. This Court

reversed the trial court’s order granting summary disposition

to the defendant. 220 Mich. App. at 184. The Ross panel,

distinguishing misfeasance from nonfeasance, stated:

3la

In this case, defendant argues that he has no duty

to control the conduct of third parties absent a special

relationship to them, particularly when the conduct is

criminal. He asserts that the father-son relationship is

insufficient to establish the required special

rei ationship that would impose a duty on him.

The argument is unavailing. Michigan courts have

distinguished active misconduct causing personal

injury (misfeasance) and passive inaction or the failure

to protect others from harm (nonfeasance). Generally,

with respect to nonfeasance, there is no legal duty that

obligates a person to aid or protect another. An

exception has developed where a special relationship

exists between the persons.

However, defendant’s act of handing a loaded gun

to [his son] was not one of nonfeasance, but rather

misfeasance. Therefore, the special relationship

doctrine is inapplicable . . . . Instead, we must

determine whether defendant had a duty to refrain

from handing [his son] a loaded weapon.

* * *

As to foreseeability, we determine whether it is

foreseeable that the conduct may create a risk of harm

to the victim and whether the result and intervening

causes were foreseeable. [Jd Ross, supra at 186-187

(citations omitted). ]

The Ross panel concluded that summary disposition was

improper because the likelihood of injury was high where the

mentally ill son was handed a loaded gun while in an agitated

state and in conflict with antagonists. Jd. at 189. Ross makes

clear that principles regarding the duty to protect another from

32a

the criminal acts of third parties and the necessity of a special

relationship do not apply in cases of misfeasance.

The essence of plaintiffs’ case is premised on misfeasance,

or active misconduct, as opposed to nonfeasance or passive

inaction, which would require a special relationship, because

plaintiffs challenged defendants’ actions in producing the

same-sex crush show.* Plaintiffs were not asserting liability

based on defendants’ failure to properly respond to Schmit::’

pointing a shotgun at Amedure or failure to actively protect

Amedure from Schmitz’ actions, nor, on close inspection, is

plaintiffs’ action premised on defendants’ failure to anticipate

or prevent Schmitz’ criminal act. Rather, plaintiffs’ action

focuses on defendants’ active misconduct that allegedly

created a risk of foreseeable harm to Amedure, which conduct

included lies, deceit, and outrageous behavior. Although it is

true that certain aspects of plaintiffs’ claims involved inaction,

such as the failure to check into Schmitz’ background, the

* Defendants argue in their reply brief that plaintiffs did not

request a jury instruction based on misfeasance, nor did the trial

court ever rule that alleged misfeasance was an appropriate basis

for imposing liability. Defendants’ argument lacks merit. The trial

court and plaintiffs continually referred to this case as a simple

negligence case, or a “classic case of negligence.” The trial court

denied the initial motion for summary disposition, in part, because

plaintiffs alleged that the show actively created a volatile situation.

In its instructions, the court instructed the jury: “Therefore, by

‘negligence,’ I mean the failure to do something that a reasonably

careful television production company would do, or the doing of

something that a reasonably careful television production company

would not do under the circumstances that you find existed in this

case.” Moreover, plaintiffs sought instructions regarding

affirmative acts, e.g., misrepresentation and intentional infliction

of emotional distress.

33a

claims are all in the context of the manner in which the show

was produced, which is a matter of active misconduct.

The majority mistakenly relies on MacDonald v PKT, Inc,

464 Mich. 322; 628 N.W.2d 33 (2001), in support of its

position. MacDonald, id. at 345, specifically reaffirmed our

Supreme Court’s earlier decision in Williams v Cunningham

Drug Stores, Inc. 429 Mich. 495; 418 N.W.2d 381 (1988), in

which the Supreme Court stated:

In determining standards of conduct in the area of

negligence, the courts have made a ¢.stinction between

misfeasance, or active misconduct causing personal

injury, and nonfeasance, which is passive inaction or

the failure to actively protect others from harm. The

common law has been slow in recognizing liability for

nonfeasance because the courts are reluctant to force

persons to help one another and because such conduct

does not create a new risk of harm to a potential

plaintiff. [Id Williams, supra at 498 (emphasis

added). |

In MacDonald, supra at 345-346°, the Supreme Court,

addressing the duty of premises owners concerning the

criminal acts of third parties, held:

> The Supreme Court noted the factual circumstances, Stating

that in these consolidated premises liability cases, plaintiffs seek to

recover for injuries they suffered when fellow concertgoers at the

Pine Knob Music Theater . . ., an outdoor amphitheater that offered

seating on a grass-covered hill, began pulling up and throwing

pieces of sod. We granted leave to address the duty of premises

Owners concerning the criminal acts of third parties. [ MacDonald,

supra at 325.

34a

[W]e conclude that merchants have a duty to

respond reasonably to situations occurring on the

premises that pose a risk of imminent and foreseeable

harm to identifiable invitees. We hold that the duty to

respond is limited to reasonably expediting the

involvement of the police, and that there is no duty to

otherwise anticipate the criminal acts of third parties.

Finally, we affirm that merchants are not required to

provide security personnel or otherwise resort to self-

help in order to deter or quell such occurrences.”

The Supreme Court additionally held that there is no duty

to prevent the criminal acts of third parties. /d. at 326. The

MacDonald Court did not hold that there was no duty to avoid

actively creating a volatile situation that gives rise to a

criminal act.

Defendants focus on the lack of any duty owed to

Amedure. Based on the case law cited above, the

determination whether defendants owed a duty to Amedure to

avoid negligent conduct depended on the conduct at issue in |

relation to the harm claimed. In other words, the relevant

inquiry in determining the existence of a duty is whether

defendants should have refrained from producing and taping

a Same-sex crush show in the fashion it was done and under

the circumstances presented, where plaintiffs asserted that the

conduct caused physical harm and death to Amedure.° In

determining whether defendants should have refrained from

producing the same-sex crush show in light of the alleged

harm, we must examine whether the harm was foreseeable in

° In Ross, supra 220 Mich. at 187, this Court stated that “we

must determine whether defendant had a duty to refrain from

handing Anthony a loaded weapon.”

— seen ee ae

35a

that context. Reversal is mandated only if we can rule, as a

matter of law and viewing the evidence in a light most

favorable to plaintiffs, that a violent response by Schmitz was

not foreseeable under the circumstances of this case.

A duty arises if events are foreseeable. Groncki v Detroit

Edison Co, 453 Mich. 644, 657; 557 N.W.2d 289 (1996).

“Criminal activity, by its deviant nature, is normally

unforeseeable.” Papadimas v Mykonos Lounge, 176 Mich.

App. 40, 46-47; 439 N.W.2d 280 (1989) . The Papadimas

panel, id. at 47, quoting Prosser & Keeton, Torts (Sth ed),

§ 33, p 201, noted that “’under all ordinary and normal

circumstances, in the absence of any reason to expect the

contrary, the actor may reasonably proceed upon the

assumption that others will obey the criminal law.’” “It is not

necessary that the manner in which a person might suffer

injury be foreseen or anticipated in specific detail.” Ross,

supra 220 Mich. at 188.

Plaintiffs rely, in part, on Pamela L v Farmer, 112 Cal.

App. 3d 206, 207-209, 169 Cal. Rptr. 282; (1980), where the

California Court of Appeals reversed a summary disposition

granted in favor of the defendant wife, where the wife knew

of her defendant husband’s history of molesting women and

children when she encouraged and invited the plaintiff minors

to use the swimming pool at her house and told the minors’

parents that it was safe for their children to play at her house

while she was at work and her husband was home. The court

ruled, in part, that if the allegations were true, the wife could

have been held to have unreasonably exposed the minors to

harm. /d. at 211. The court also ruled that “where the

defendant, through his or her own action (misfeasance) has

made the plaintiff's position worse and has created a

foreseeable risk of harm from the third person[,]” liability

36a

may arise. /d. at 209. The principles enunciated in Ross

parallel those in Pamela L.

Defendants rely on Johnson v Detroit, 457 Mich. 695,

697, 699-700; 579 N.W.2d 895 (1998), in which the decedent

committed suicide in a police station holding cell through use

of exposed overhead bars that originally had been covered by

mesh but were exposed because the mesh had been torn away

and had not been repaired. Although the defendant was aware

of the need to repair the problem, it had failed to do so. Our

Supreme Court, rejecting the plaintiff's negligence claim,

stated:

In her negligence claim, the plaintiff has to

establish that the defendant had a duty to this

particular decedent, that it breached that duty by

placing the decedent in the defective cell, and that the

breach was a proximate and factual cause of the

decedent’s death. A defendant does not owe a duty to

an unforeseeable plaintiff. In this case, plaintiff failed

to present a genuine issue of material fact establishing

the existence of a duty owed to plaintiff's decedent

because defendants were actually unaware, and it was

not reasonably foreseeable, that the decedent was

suicidal before placing him in the defective cell... .

. . . Officers testified that the decedent gave no |

indication that he was suicidal. Conversely, the | |

plaintiff presented nothing to refute this evidence and |

did not offer any evidence that the suicide was | :

reasonably foreseeable. | |

Where the events leading to injury are not

foreseeable, there is no duty, and summary disposition

is appropriate. Groncki v Detroit Edison Co, 453

37a

Mich. 644, 657; 557 N.W.2d 289 (1996). In this case,

the defendants had no notice that the decedent might

attempt suicide, and therefore they cannot be held

responsible for failing to prevent the decedent’s death.

This death was not reasonably foreseeable. Tragic as

it was, defendants cannot be held responsible for the

unforeseen suicide of the plaintiff's decedent.

[Johnson, supra at 711-712.]

Johnson leads to the issue whether Schmitz’ personal

history, which included depression, alcohol and drug abuse,

suicide attempts, anger management problems, and sexual

identity concerns, should be taken into account in determining

whether a violent response was foreseeable, where there was

no evidence that defendants knew about Schmitz’ personal or

psychiatric history.’ The majority states, when it does reach

the issue of misfeasance, that “Schmitz gave every appearance

of being a normal, well-adjusted adult who consented to being

surprised on the show by a secret admirer of unknown sex and

identity.” Ante at _. For the most part, I agree with this

statement.®

The matter presents a unique situation in the law regarding

the foreseeability of third-party criminal acts because

ordinarily one would not have the opportunity to look into the

personal history of the criminal actor’s life or even know who

’ This evidence was presented to the jury through the testimony

of plaintiffs’ experts and individuals with personal knowledge of

Schmitz’ life, including his ex-girlfriend with whom he had lived.

* There was some testimony presented that one of the show’s

producers was so annoyed by Schmitz’ constant telephone calls

before the show that if Schmitz called one more time, the producer

would smack him.

38a

the criminal actor was going to be before the negligent act

occurred; however, here the show knew that it was going to

surprise Jonathan Schmitz and cause some type of emotional

reaction before it proceeded with its intentional act. In

Johnson, supra, where the Supreme Court relied on the lack

of notice of suicidal tendencies, the police did not have the

opportunity or ability to review the decedent’s background, let

alone know his identity, in order to make an assessment of

any suicidal tendencies before arresting him and putting him

in the holding cell, and to require the police to do so would be

unreasonable; they were only able to assess any suicidal

tendencies on the basis of his interaction with the police at the

time of the arrest. In Ross and Pamela L, supra, the

defendants knew of the criminal actors’ personal history

because the actors were family members.

The question should not involve whether the show must be

required or has a duty to make an inquiry into the background

of a particular person, the failure of which may result in

liability, but rather whether defendants should be charged with

the knowledge of the actual history for the purpose of

foreseeability analysis.

I would hold that as a matter of public policy, if

defendants, for their own benefit, wish to produce “ambush”

shows that can conceivably create a volatile situation, they

should bear the risk if a guest is psychologically unstable or

criminally dangerous by being charged with that knowledge

in the context of any foreseeability analysis. “’Public policy

is to be ascertained by reference to the laws and legal

precedents and not from general considerations of supposed

public interests.’” Terrien v Zwit, 467 Mich. 56, 68; 648

N.W.2d 602 (2002), quoting Muschany v United States, 324

U.S. 49, 66; 65 S. Ct. 442; 89 L. Ed. 744 (1945). Analogous

legal precedents form the basis of my public policy position.

39a

In Richman v City of Berkley, 84 Mich. App. 258, 261,

269 N.W.2d 555 (1978), this Court stated that it “is a basic

tort rule of law--a tortfeasor takes his victim as he finds him.”

In a separate dissenting opinion in Pierce v General Motors

Corp, 443 Mich. 137, 155-156; 504 N.W.2d 648 (1993),

Justice Levin noted that all first-year law school students are

taught that a tortfeasor takes his victim as he finds him as

explained through the example of the man with an eggshell

skull; one is responsible for the consequences of hitting a

person on the head and cracking the skull even if the skull was

weak to begin with and one gave only a slight blow as a joke.

Finally, our Supreme Court in Wilkinson v Lee, 463 Mich.

388, 396-397; 617 N.W.2d 305 (2000), quoting with approval

2 Restatement Torts, 2d, § 461, p 502, and the accompanying

comment, stated:

“The negligent actor is subject to liability for harm

to another although a physical condition of the other

which is neither known nor should be known to the

actor makes the injury greater than that which the

actor as a reasonable man should have foreseen as a

probable result of his conduct.”

“The rule stated in this Section applies not only

where the peculiar physical condition which makes the

other’s injuries greater than the actor expected is not

known to him, but also where the actor could not have

discovered it by the exercise of reasonable care, or,

indeed even where it is unknown to the person

suffering it or to anyone else until after the harm is

sustained. A negligent actor must bear the risk that his

liability will be increased by reason of the actual

physical condition of the other toward whom his act is

negligent.”

40a

I would apply these principles by analogy to the case sub

judice. Although Amedure, through his estate, was the

“victim” for purposes of the instant action, the alleged

misfeasance was also directed at Schmitz, and on the basis of

the very unique circumstances of this case, defendants should

take Schmitz as they found him, making it appropriate to

consider Schmitz’ personal history in determining

foreseeability. To rule otherwise would allow television,

radio, or other media outlets to undertake similar actions as

occurred here without limit and claim lack of foreseeability in

the face of a civil action because they lacked knowledge

concerning the history of a person they set up for ridicule.

The Wilkinson Court concluded that “the fact that this

particular plaintiff was unusually vulnerable to head injuries

does not relieve the defendants of responsibility for those

damages.” Wilkinson, supra at 397. Likewise, the fact that

Schmitz was unusually vulnerable should not relieve

defendants of their responsibility. For purposes of

foreseeability analysis, defendants should be made to bear the

risk where a guest is psychologically unstable or criminally

dangerous and defendants acted intentionally in producing the

show for their own benefit.

I am not asserting that defendants should not be allowed

to produce shows of this kind, nor that they must be required

to make inquiry into the personal backgrounds of guests

(although an industry practice to make minimal inquiry could

be beneficial to all), but only that if they wish to produce

“ambush” “hows through the exploitation of guests, they must

take those guests as they are.’

° If a show were to surprise a person about a spouse’s

infidelities, and the surprised spouse had a history of numerous

convictions for felonious and brutal assaults against domestic

4 Sane aD as kab bt aes OI batts, Tne en eaia Stee

4la

Considering the evidence in a light most favorable to

plaintiffs, the show used lies, deceit, sensationalism, and

outrageous behavior, while playing with human emotions, in

order to orchestrate a grand surprise for the benefit of its

audience and ratings, which caused Schmitz to suffer deep

embarrassment, humiliation, and extreme anger. Taking into

consideration Schmitz’ personal mental frailties and dangerous

inclinations, those circumstances could lead reasonable jurors

to draw different conclusions regarding whether it was

foreseeable that Schmitz would commit an act of violence

against Amedure.'° Therefore, resolution by the jury was

appropriate.

In view of the majority’s opinion to reverse on the basis

of the “duty” issue, other than to record my disagreement

with the analysis by the majority in this dissent, I see no value

in attempting to address the other issues raised on appeal.

/s/ William B. Murphy

partners, it would only be appropriate to attribute knowledge of that

history to the producers of such a show where the unfaithful spouse

is subsequently harmed by the surprised spouse because of the

public revelation.

'° The jury was also presented with expert testimony about the

potential dangerous repercussions of producing shows of this nature

and with testimony that warnings concerning these dangers were

actually given to defendants before the taping of the show at issue.

42a

APPENDIX E

STATE OF MICHIGAN

IN THE SUPREME COURT

Supreme Court Docket No: 122457

Court of Appeals Docket No: 227392

Lower Court No: 94-409216-NH

LINDA M. GILBERT,

Plaintiff-Appellee,

VS.

DAIMLER CHRYSLER CORPORATION,

Defendant-Appellant.

a a a a a a a

AFFIDAVIT OF GEOFFREY N. FIEGER IN

SUPPORT OF MOTION FOR RECUSAL AND FOR

EVIDENTIARY HEARING

STATE OF MICHIGAN _ )

)SS.

COUNTY OF OAKLAND )

43a

GEOFFREY NELS FIEGER, being first duly sworn,

deposes and says that:

1. Except as otherwise stated in this Affidavit, the

contents are made on personal knowledge of which I can and

will testify if called as a witness.

2. As to matters of which I do not have personal

knowledge, I believe that the contents are true, based on

information available to me, and can be proven at an

evidentiary hearing.

3. I was trial counsel for Linda Gilbert, Plaintiff in the

above-entitled case.

4. I have reviewed the Statement of Facts of the Brief

filed in support of the Motion for Recusal and for Evidentiary

Hearing and, to the best of my information, knowledge and

belief, all factual statements therein are true.

5. A verdict and Judgment have been obtained in favor of

my client, Linda Gilbert, against Defendant Daimler Chrysler.

6. On appeal, the Court of Appeals affirmed the verdict

and Judgment for Linda Gilbert (#227392, unpublished per

curiam Opinion released 7/30/02; Hon. William C.

Whitbeck, Hon. Jane Markey; Hon. Thomas Fitzgerald], and

denied Defendant’s Motion for Rehearing [Order of 9/12/02].

7. My law firm, and through it I personally, have an

economic interest in the outcome of the pending Application

pursuant to a contingent fee agreement and the attorney fee

recovery allowed in an action under the Elliott-Larsen Civil

Rights Act by MCLA 37.2802.

44a

8 Neither the Michigan Chamber of Commerce nor

the United States Chamber of Commerce participated or

sought to participate in this case in the trial court or Court of

Appeals.

9. Both the Michigan Chamber of Commerce and

United States Chamber of Commerce have filed proposed

Amicus Curiae Briefs in this Court in support of Defendant

Daimler Chrysler, which has been identified as a member of

each.

10. According ‘9 published reports, the Michigan

Chamber of Commerce donated over $3,000,000, advertising

or other things of value worth that amount, to the 2000

election campaigns of Justices Markman, Tayloi and Young.

11. Additionally, Mr. LaBrant, the author of the

proposed Amicus Brief of Michigan Chamber of Commerce,

is credited with creation of a widely published advertisement,

known as the “my dancing tree” ad which contributed to the

election of Justices Markman, Taylor and Young in 2000.

i. Moreover, at about the time it filed its proposed

Amicus Brief, in the fall of 2002, the Michigan Chamber of

Commerce financed a massive public television ad campaign

endorsing Justices Weaver and Young.

13. By this course of conduct, the Michigan Chamber

of Commerce, which had no participation in this case in the

lower courts, has asked this Court to benefit its member,

Defendant Daimler Chrysler, after having publicly financed

multi-million campaign donations to or for a majority of the

members of this Court (Justices Markman, Young, Taylor and

Weaver).

45a

14. By Order of April 8, 2003, with no indication of

recusal or dissent from Justices Corrigan, Markman, Weaver,

Young, or Taylor, the Court did what the Michigan Chamber

requested: permit it to participate as Amicus Curiae and

grant leave to appeal to its member, Defendant Daimler

Chrysler.

15. I sincerely believe that it would minimally create

an appearance of impropriety for Justices Markman, Taylor,

Young and Weaver to participate in deciding this appeal on its

substantive merits after publicly receiving a multi-million

dollar benefit from Defendant Daimler Chrysler’s Amicus

supporters, which are groups to which it belongs.

16. I also sincerely believe that public campaign

contributions of this magnitude necessarily give rise to a bias,

prejudice, or predisposition on the part of Justices Markman,

Young, Weaver and Taylor to benefit Defendant, whose

organiza-tion contributed to the campaigns by which these

Justices attained or retained their seats on this Court.

17. I was the nominee of the Democratic Party for the

office of Governor of the State of Michigan in the 1998

election.

18. |My principal opponent in that election was

Governor John Engler.

19. During that campaign, and on other occasions,

Governor Engler and I have been very critical of each other

publicly.

20. In 1993, on a statewide broadcast radio station,

Governor Engler advocated my disbarment as a means of

46a

preventing conduct of my client, Dr. Kevorkian, that

Governor Engler found objectionable.

21. During the campaign, and during the term of office

of Governor Engler, the wife of Justice Taylor has been on

the staff of Governor Engler as legal counsel to the Governor.

22. I have been told that Governor Engler lived with

Justice Taylor and his wife at a time when he was separated

or divorced from his first wife, Colleen Engler.

23. Justices Taylor, Corrigan, Young and Markman

have been appointed to the Court of Appeals and/or Supreme

Court by Governor Engler and, to that extent, owe their

judicial ofiices to my critic and former adversary, Governor

Engler.

24. Inan apparent effort to kindle or rekindle among

these Justices antipathy, bias, or prejudice to me, Defendant

Daimler Chrysler has presented to this Court, as Exhibits to

its Application, materials regarding the 1998 gubernatorial

campaign.

25. — I believe that these filings by Defendant Daimler

Chrysler were intended to, and may in fact, kindle or rekindle

bias, prejudice or antipathy, toward me by Justices Corrigan,

Taylor, Young and Markman.

26. This concern is enhanced by the public statements

about me by Justice Young, who is reported as believing that

I “hate this court”, and that he personally believes that there

is, “honor in that” hate [“Geoffrey Fieger and his trial lawyer

cohorts hate this Court. There’s honor in that”].

47a

27. | My concerns are further enhanced by the public

statements of Justice Markman, who regards those who

represent plaintiffs in medical malpractice cases, like myself,

as his opponent (“Our opponents, the people who quite

frankly make a liveli-hood suing [doctors]. . .”).

28. Additionally, Justice Taylor has publicly made

statements regarding my economic interest in certain cases,

including this case particularly (“Geoffrey Fieger . . . has

$90 million of lawsuit awards pending in the State Court of

Appeals”).

29. Justice Corrigan has even initiated a Request for

Investigation, which has since been dismissed, by which she

threatened the loss of my license to practice law, the event

advocated by Governor Engler in 1993. — Further, Justice

Corrigan’s husband, now deceased, wrote numerous articles

published in newspapers critical of me and my representation

of Dr. Kevorkian. She has previously disqualified herself

from a case involving Dr. Kevorkian after this issue was

raised.

30. In view of these circumstances and others detailed

hereafter, I sincerely believe that Justices Corrigan,

Markman, Young and Taylor harbor a predisposition of bias

or prejudice against me personally.

31. — I further believe that it would minimally create the

appearance of impropriety for these Justices to participate in

this appeal after having attacked me personally.

32. | My concerns and beliefs are enhanced because of

the public nature of these criticisms and announced

predispositions, and by the fact that these statements (other

than the Request for Investigation by Justice Corrigan) were

48a

made in the context of a political campaign by which the

statements were ostensibly made to curry electoral favor by

suggesting a predisposition to rule adverse to me and my

clients.

33. 1 am aware of other examples of public political

advertisements on behalf of Justices Markman, Taylor and

Young targeting me personally, in their successful 2000

campaign for the offices they now occupy.

34. | These statements were made even though I was not

a candidate for public office during that election, and have

never been a candidate ‘or public office since 1998.

35. Inone advertisement, featuring what I believe to be

the voices of Justices Markman, Taylor and Young, the ads

for the candidates nominated by the Democratic Party were

characterized as “vicious”, “false”, “silly” a “smear

campaign” and “degrading the Court and the public’s

confidence in Michigan’s judiciary”. The advertisement then

continues, “Some people will do anything to get elected. No

wonder Geoffrey Fieger, Jesse Jackson [and others who

support the Democratic candidates] .. .”.

36. |The implication of that ad seems to be that I

supported the adversaries of these Justices because of my

fondness for vicious, false and degrading statements, an

implication which I regard as an expression of bias or

prejudice toward me by Justices Markman, Taylor and

Young.

37. An another example, the “Victory Line”

publication, which promoted the candidacy of Justices Young,

Taylor and Markman, attacked me by name and accused me

of using “specious legal reasons” to foster “The virtual

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explosion of litigation - - most of which is frivolous, excessive

and very expensive for taxpayers.”

38. Iam deeply concerned with the announcement that

most litigation is frivolous, an announcement which suggests

a predisposition to reverse a recovery for a plaintiff like Ms.

Gilbert.

39. Another political advertisement on behalf of

Justices Markman, Young and Taylor entitled, “He’s back .

. .” features my picture, and contends that “. . .Geoffrey

Fieger [is] trying to take over Michigan’s Supreme Court.

Their strategy: elect liberal judges who are soft on crime”,

and characterizes the opposing candidates as “FIEGER’s

FRIENDS” and “the Fieger team”.

40. Yet another piece of campaign literature issued on

behalf of Justices Taylor, Markman and Young, entitled “Our

police make critical judgements [sic] each day”, criticized the

opposing candidates as “Geoffrey Fieger’s friends”.

41. Another piece of campaign literature, which

characterized Judge Fitzgerald as a “Geoffrey Fieger

libera{l]”, was entitled “Forever isn’t long enough for a child

molester”, implying that I support sexual abuse of children.

42. A press release on March 3, 2000 criticizing

candidate Marietta Robinson, issued by the Michigan

Republicans, who nominated Justices Young, Markman and

Taylor, criticized her as favored by “a multi-millionaire trial

lawyer like Geoff Fieger” who, if elected, would allow “trial

lawyers like Geoff Fieger [to] keep getting richer while

Michigan families keep footing the bill”. :

50a

43. These public statements on behalf of Justices

Markman vung and Taylor bespeak a bias or prejudice

against me, a pre-occupation with my income and an implied

predisposition to reverse cases in which I have achieved a

significant recovery for a client.

44. __I sincerely believe that for the reasons discussed

above, Justices Corrigan, Taylor, Young and Markman are

prejudiced or biased against me, and are predisposed to

reverse any significant verdict returned in favor of any of my

clients.

45. This predisposition has also been discerned by

public commentators such as former President of the State Bar

of Michigan Eugene Mossner and in the popular media.

46. I sincerely believe that it would create an

appearance of impropriety for Justices Markman, Corrigan,

Young and Taylor to participate in deciding this appeal on its

substantive merits.

47. — I believe that, if an evidentiary hearing were held,

all of the above asser-tions of fact could be proven, and that

yet other instances of comments or conduct adverse to me or

my clients would be unearthed.

/s/

GEOFFREY NELS FIEGER

Sla

Subscribed and sworn to before me this

day of April, 2003

/s/

Notary Public

Oakland County, Michigan

My Commission Expires:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.