The mathematics of ‘appearance of impropriety’

In Caperton v. A.T. Massey Coal Co., ___U.S. ___; 129 S. Ct. 2252; 173 L. Ed. 2d 1208 (2009), we learned that when a newly elected appeals judge gets more than $3 million in campaign contributions directly and indirectly from a businessman, then votes with the majority to wipe out a $50 million judgment against him, the whole affair stinks to high heaven, and the judge’s refusal to recuse himself is a due process violation.

In Grievance Administrator v. Miller, we learn that when the Michigan Supreme Court declines to review the Attorney Discipline Board’s decision to dismiss an ethics complaint, MSC Chief Justice Marilyn Kelly believes that the attorney’s $3,400 contribution to her re-election campaign six years ago, without more, does not create the “appearance of impropriety” necessary under MCR 2.003 for Kelly to take herself off of the case.

Without Kelly’s participation, the attorney’s frustrated clients would be having their day in the Supreme Court. For some high-court drama on the MSC’s refusal to take the case, see, The Michigan Lawyer, “Corrigan rebukes MSC colleagues for not reviewing ADB decision” and “MSC’s Young: I will not participate in ‘Miller’.”

Now, the actual reason Kelly said she stayed on the case is that those litigants seeking to disqualify her didn’t file their motion quick enough, which was 28 days after the Court amended the rule to provide filing time limits.

But Kelly went beyond the procedural ground for dismissal and discussed two additional reasons why it was okay for her to be on the case.

First, said Kelly, the contribution was lawful:

A lawful campaign committee contribution, absent more, does not warrant recusal under our objective standard for the appearance of impropriety.

Indeed, such contributions are commonplace in judicial campaigns. The Michigan Campaign Finance Act’s campaign contribution disclosure provisions reflect the Legislature’s understanding that, standing alone, lawful contributions to campaign committees in the permitted amounts will not undermine the public’s confidence in our judiciary.

The contribution alone does not indicate any closer relationship between myself and respondent than would ordinarily exist between members of the same bar association.

In fact, appellants have not suggested that there exist any facts, aside from the contribution, that could cause my impartiality in this case to be questioned. And none does exist.

Second, Kelly noted, the amount involved is de minimus when compared to the total her campaign committee raised, and certainly not is the same league as the sums involved in Caperton:

[R]espondent’s single contribution of $3,400.00 represents a de minimis amount of the total raised by my campaign committee in 2004: less than one-half of one percent. This small amount does not create an objective appearance of impropriety.

In Caperton v A T Massey Coal Co, Inc, the U.S. Supreme Court ruled on a West Virginia Supreme Court justice’s refusal to recuse himself. The CEO of a lead defendant in a case before the West Virginia Supreme Court had contributed $3.5 million to the justice’s campaign. The refusal to recuse was held to constitute a violation of the due process clause of the Fourteenth Amendment.

However, given the obvious difference in size between the contribution at issue in Caperton and respondent’s contribution here, one could not reasonably analogize the two cases.

Thus, respondent’s contribution, absent any indicia of an appearance of impropriety, does not mandate my recusal, and the Caperton decision does not require it, either. In any event, appellants do not argue that Caperton mandates my recusal. Nor do they allege that respondent’s campaign contribution and my participation in this case amount to a due process violation.

In a footnote, Kelly did the math:

The Committee to reelect Supreme Court Justice Marilyn Kelly raised $728,800.45 from over 2,200 individual contributions. $3,400.00/$728,800.45 = .004665, or .4665%.

In contrast, Blakenship, the businessman in Caperton, financially dominated the election that elevated Judge Brent Benjamin to the Virginia appeals court. From the SCOTUS syllabus in Caperton:

To provide some perspective, Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. …

Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.

So, two points on the continuum have been established: $3,400 is chump change in the scheme of things and $3 million, an expenditure roughly 882 times larger, makes almost everyone, except the guy giving it and guy getting it, hold their noses.

There’s a tipping point between the two, somewhere. See, The Michigan Lawyer, “That’s too much!

Let’s hope we never have to find it.

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MSC: Cox can prosecute Waterstone, orders arguments in ‘Aceval’

In a trio of orders released over the weekend, the Michigan Supreme Court:

In Waterstone, five justices said that the Court of Appeals erred in by booting Cox from the case.

While recognizing that the Attorney General is subject to the rules of professional conduct, we hold that disqualification is not required in this case because accommodation of his unique constitutional and statutory status will not infringe on the defendant’s right to a fair prosecution. …

The Attorney General’s unique status “requires accommodation,” … and such accommodation is particularly apt where no evidence has been presented of any prejudice that would be suffered by the defendant.

The Court also stated that the COA acted prematurely by suppressing Waterstone’s statements to an AG investigator during an interview at her home.

The defendant did not move for suppression of these statements in the lower courts and, thus, the Court of Appeals fact-finding and suppression rulings were premature. This order, however, does not preclude the defendant from pursuing suppression in the lower courts, nor does it preclude the Attorney General from conceding to suppression.

Justice Elizabeth A. Weaver, in a concurring statement, noted that Justice Maura D. Corrigan was not participating because Corrigan has been asked to be a character witness for Waterstone.

Weaver had a few questions about Corrigan’s decision not to participate:

Regarding this statement, on September 28, 2009 the Detroit News reported:

“Contacted at her home by The News on Sunday, Corrigan said, ‘I was asked to be a character witness, and I agreed.’”

Has Justice CORRIGAN agreed to be a “character witness” in this case as quoted in the Detroit News?

Has Justice CORRIGAN been subpoenaed in this case? If so, when?

What is Justice CORRIGAN’s relationship, if any, to the accused defendant Judge Waterstone?

Justice Robert P. Young Jr. dissented, arguing that instead of reversing the COA, the Court should have granted leave to appeal

on the broader question of how the Michigan Rules of Professional Conduct apply to the Attorney General’s unique role as the chief legal officer of this State. The Michigan Rules of Professional Conduct (MRPC) establish necessary principles and rules to safeguard a fair adversarial system of justice under the law.

I agree that the common law and constitutional role of the Attorney General requires accommodation, not an exception, in applying general ethical rules to specific situations, because the general rules do not fully encompass the Attorney General’s unique role.

Nevertheless, we must be careful that, in forging the proper accommodation that would allow the Attorney General to carry out his various and sometimes conflicting functions, we do not jettison the important ethical principles that all lawyers must follow. Unfortunately, I believe this is exactly what the majority has done.

The order they have issued is intentionally and artfully obscure. It cursorily reverses the Court of Appeals decision and fails to offer a scintilla of rationale for the majority’s decision in this case. The majority has provided no rationale, and I do not pretend to have a clear idea regarding how to tailor the MRPC to this case.

That is precisely why I believe that this Court ought to grant appellant’s application for leave to appeal so that the parties — and amici — can more fully brief this Court about the real-world consequences of accommodations that should or should not be made when applying the MRPC to the Attorney General.

In Aceval, the Court has asked the parties to

address whether the prosecution’s acquiescence in the presentation of perjured testimony in order to conceal the identity of a confidential informant amounts to misconduct that deprived the defendant of due process such that retrial should be barred.

The full-Court consideration of Aceval’s disqualification motion produced a bit of a pot-boiler.

As he has in the past, Young refused to participate in the disqualification proceeding on his belief that amended MCR 2.003 is unconstitutional.

In a concurring statement, Weaver said, “I make no criticism or objection to his position to not participate because he believes the rule is ‘unconstitutional.’”

But Weaver immediately clubbed Young for filing an ethics complaint with the Judicial Tenure Commission for her alleged violation of AO 2006-8, which provides:

All correspondence, memoranda and discussions regarding cases or controversies are confidential. This obligation to honor confidentiality does not expire when a case is decided. The only exception to this obligation is that a Justice may disclose any unethical, improper or criminal conduct to the JTC or proper authority.

Weaver calls AO 2006-8 the “Gag Order,” and says it is unconstitutional.

So, in Weaver’s view:

Justice YOUNG’s approach as to the disqualification rule is quite inconsistent with his condemnation of my position that the “Gag Order,” AO 2006-8, is unconstitutional; is in conflict with and in violation of Canon 3A(6) of the Code of Judicial Conduct; and is an effort to establish secrecy (i.e., a “secret club” rule) to keep me from performing my duty to the people to inform them of what I believe they need to know — no more, no less — about how, what, when and where the Court performs the people’s judicial business.

We’ve got plenty of background on all three of these rulings and related subplots. See, The Michigan Lawyers, “MSC to consider COA’s conflict ruling in Waterstone case”; “Hathaway won’t step away from Aceval case, Markman complains of delay” and “Supreme spat.”

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Supreme spat

At the end of today’s Michigan Supreme Court administrative conference, the sparks flew as Justice Elizabeth A. Weaver requested to rescind AO 2006-08, which she called a “gag order” which was used to suppress her dissent in Attorney Grievance Commission v Fieger.

She said it was adopted on an emergency basis during an executive session late in 2006 by a 4-3 vote, led by then-Chief Justice Clifford Taylor.  At a subsequent public hearing in January 2007, Weaver said, the Court took public comments, but then never voted to retain or amend the order, which she said makes 2006-08 invalid under the court’s orders and procedures as defined in AO 1997-11 (B) (2).

But it’s not a simple housekeeping issue, said Justice Stephen J. Markman. The order, he said, has been in place since December 2006.

“What’s different about things today than yesterday, and last week, and last month?” he asked.

What’s different, it turns out, is that three justices — Markman, Robert P. Young and Maura D. Corrigan — recently asked the Judicial Tenure Commission to investigate Weaver for violating the administrative order.

“I referred you,” Young said, “because you’re unethical. … You have compromised the integrity of this court and have made it impossible for this court to have deliberation without fear …” that comments made in private discussions would later be made public.

Corrigan called Weaver’s attempt to cease the publication of AO 2006-08 “an attempt to cover up” her alleged violation of it.

“We know why Justice Weaver wants this rule eradicated. Justice Weaver wants to kill this order retroactively, and act as though it never existed, because she broke the rule,” Corrigan said. “The rule is simple: When deciding cases that come before us, judges need to communicate openly and frankly with one another. To that end, we must protect the confidentiality of our deliberations.”

The most recent alleged violation, Weaver explained, was not a violation at all. She said that she has recused herself from a case because she had spoken to an attorney who she did not know was employed by a firm that had a case in front of the Michigan Supreme Court; though not giving details, she said that the case in question was finished at the time of the conversation, but may be related to future cases. Though the conversation would not amount to impropriety, she said she recused herself to avoid even the appearance of impropriety. Weaver said she did not discuss the substance of the case, which is prohibited by 2006-08. Processes, however, she said are fair game in conversations after the conclusion of cases.

Aside from the bombshell dropped when Young, Corrigan and Markman identified themselves as the colleagues who had sent referrals to the JTC, Markman also said he had stopped attending the court’s private judicial conferences; Weaver said that Corrigan and Young had also not attended the last three meetings.

There was no choice but to stop attending the judicial conferences, Markman said because Weaver “has flagrantly breached rules of confidentiality, and promises to do so again, by revealing interim positions of justices as to their votes in conference, as well as their other privately expressed opinions concerning cases before this court.

“I  do not wish to continue to place myself in a position by which Justice Weaver can abuse the deliberative process, while taking out of context statements made by justices in the course of their deliberative discussions.”

Weaver fired back that when she was elected, she never “said I was joining a secret club.”

Further, she said, justices are required by Cannon 3 B of the Michigan Code of Judicial Conduct to “facilitate the work of the court,” which the absent justices have not been doing.

As for the referral to the JTC, Weaver said that she used to teach elementary school and learned then that no one likes a tattletale.

“The public is not interested in tattletale judges,” she said. “The public will take care of tattletale judges.”

Weaver’s proposed order failed 5-2, with weaver and Justice Diane M. Hathaway voting in favor; against were Justice Michael F. Cavanagh, Corrigan, Young, Markman, and Chief Justice Marilyn Kelly.

Kelly proposed a substitute, which also failed 5-2 with Kelly and Cavanagh voting in favor.

“This controversy does not alter the Court’s duty to the people of Michigan, nor should it,” Kelly concluded. “My colleagues and I will continue, as we have always done, to decide cases, write and issue opinions, consider and promulgate changes to court rules, and perform the court’s other business. We have responsibilities to the public and to litigants; that does not and will never change. The court’s work continues.”

In their opinions

Geoffrey Fieger

Geoffrey Nels Fieger

“[W]e expect that our Court’s role in the drama between Fieger and the Michigan justices has finally come to a close.”

Judge Boyce F. Martin Jr., 6th U.S. Circuit Court of Appeals, in Fieger v. Corrigan, et al. (Fieger V).

Déjà vu. The Sixth Circuit has tossed out Geoffrey Fieger’s latest, and, Martin apparently hopes, last attempt to make a federal case of his claims that he can’t get a fair and impartial tribunal when Michigan Supreme Court Justices Maura D. Corrigan, Robert P. Young Jr. and Stephen J. Markman are involved.

Fieger’s previous attempts include:

From Martin’s opinion in Fieger V:

Each of his previous cases in this Court involved some variation on a constant theme: Fieger and the Michigan justices (who must stand for re-election and, thus, commonly make public statements) have been involved in an on-going public spat and that, in retaliation against Fieger, the justices had voted to overturn large jury verdicts that Fieger’s firm had won on behalf of its clients.
Both this case and Fieger IV involve the same allegations:

(1) the Michigan justices had unjustifiably refused to recuse themselves from cases in which Fieger represented the plaintiffs, and

(2) these justices are likely to continue to refuse to recuse themselves in Fieger’s future cases. In this case, Fieger seeks a declaration that Michigan’s recusal rules deny him his constitutional right to a fair tribunal in which to be heard.

Fieger V reached the Sixth Circuit via Fieger’s fast footwork in Judge Marianne Battani’s federal district courtroom.

In 2004, Fieger filed suit in the United States District Court for the Eastern District of Michigan (the “2004 case”), which resulted in both the Fieger II and Fieger IV opinions.

In the 2004 case, Fieger complained of the Michigan justices’ past refusals to recuse themselves and brought facial and as-applied constitutional challenges to Michigan’s judicial recusal rule. The district court dismissed Fieger’s Complaint on Rooker-Feldman grounds. On appeal, this Court affirmed in part, reversed in part, and remanded the case to address Fieger’s claims insofar as they concerned future recusal decisions, as those claims would not implicate Rooker-Feldman.

On Fieger II‘s remand of the 2004 case, the district court heard argument on the defendants’ renewed motion to dismiss. According to Fieger, the district court seemed to be leaning towards dismissing the 2004 case again, which Fieger, of course, believes was the wrong way to lean. He therefore brought the instant case – again in the United States District Court for the Eastern District of Michigan, but before that court had actually issued its decision on the renewed motion to dismiss in the 2004 case – alleging the identical as-applied challenges that he brought in the 2004 case against the same parties. …

After Fieger filed the instant suit, the district court did, in fact, dismiss the 2004 case after the Fieger II remand. Fieger once again appealed the district court’s ruling in the 2004 case, while the instant case was still before the district court.

On April 21, 2010, another panel of this Court issued an opinion dismissing Fieger’s forward-looking declaratory judgment claims in the 2004 case as moot because, in the intervening period, the Michigan Supreme Court amended its recusal rules in a manner that substantially addressed Fieger’s claims against the justices of the Michigan Supreme Court. …

If the reader finds the above procedural background to be odd, we agree; so too, apparently, did the district court. Faced with Fieger’s request to review its prior decision, the district court found that res judicata applied and dismissed the case.

Martin wrote that Battani got the right result but from a strict legal standpoint, it was because Fieger’s latest suit was moot.

At the time the district court issued its decision in this case, the 2004 case was on appeal and therefore not final. Furthermore, on appeal, Fieger IV was decided on mootness grounds, so the 2004 case did not result in a final judgment on the merits to which we could now give preclusive effect.

However, the principles underlying res judicata still operate to bar Fieger from bringing materially identical cases in rapid succession. Litigants may not escape res judicata‘s preclusive finality merely by filing a new, identical case before the prior case becomes final.

It follows, then, that because the claims in this case substantially mirror the claims in the 2004 case, so too should the result. … Because the claims in the 2004 case were mooted by Michigan’s subsequent revision of its recusal rules, Fieger IV … this case is also moot.

Five strikes and you’re out.

Hathaway won’t step away from Aceval case, Markman complains of delay

The wheels of justice almost never spin quickly, and in People v. Aceval (majority opinion) (concurring opinion), the pace may now be especially slow, according to Michigan Supreme Court Justice Stephen J. Markman.

Aceval, you’ll recall, was charged with a major drug offense. The jury deadlocked. Later, Aceval alleged that the trial judge and the prosecutor knew some of the prosecution’s witnesses were lying under oath and did nothing about it.

His second trial got underway but ended abruptly with his guilty plea in the face of allegations that he persuaded a prosecution witness to lie on his behalf. See, The Michigan Lawyer, “MSC to consider COA’s conflict ruling in Waterstone case“, for more background on Aceval’s case and the messy business of trying to get a perjury prosecution going against the judge who presided over Aceval’s first trial.

Diane M. HathawayThe latest chapter in the protracted saga: Aceval’s attorney, David L. Moffitt, moved to disqualify Justice Diane M. Hathaway from participating in Moffitt’s motion to have the Court rehear its 3-3 denial of Aceval’s application for leave to appeal. See, The Michigan Lawyer, “MSC denies drug defendant’s appeal on 3-3 vote, Corrigan may testify for former judge in related case.”

Hathaway denied the motion and wasn’t shy about her reasons for doing so:

I have carefully reviewed this matter and I find that I have had no involvement in defendant’s case as a trial court judge or as a former member of the Wayne County Circuit Court bench. I did not have any actual knowledge of defendant during my time on the Wayne County bench. Further, I am not personally acquainted with defendant, or counsel for the defendant, and accordingly harbor no bias or prejudice against either of them …

Defendant essentially alleges that I cannot be impartial in this appeal because I was a member of the Wayne County bench at the time of his conviction and am acquainted with the other members of that bench. However, the mere fact that I was a member of the same trial bench clearly does not support recusal in and of itself. …

Defendant’s challenge to my ability to be impartial in this appeal is also based on the unsupportable and fictitious premise that there is widespread corruption and cronyism among Wayne County judges and prosecutors. This bold assertion is supported only by numerous disjointed and bizarre allegations and opinions of his counsel. …

He further challenges my ability to be impartial based on my former marriage to Richard Hathaway, (former Wayne County Circuit Judge) currently a Wayne County prosecutor. However, I have been divorced from Richard Hathaway for over 15 years, we do not share any common financial or business interests, and I do not harbor any bias or prejudice for or against him. Moreover, I am unaware of what specific role Richard Hathaway has played in this prosecution, or its relevance to any issue in this case, and defendant has failed to provide any details in this motion.

Stephen J. MarkmanMarkman also provided a statement regarding the motion to disqualify. Whatever thoughts he had about the motion’s merits, or Hathaway’s disposition of it, he appropriately kept to himself.

Under MCR 2.003(D)(3)(b), “the challenged justice [emphasis added] shall decide the issue and publish his or her reasons about whether to participate. If the challenged justice denies the motion for disqualification, a party may move for the motion to be decided by the entire Court.”

It’s the second sentence in the above quote that prompted Markman’s statement:

I write separately only to observe that this Court adheres to a different procedure in the present motion for disqualification than it did with regard to the recent motion for disqualification in Pellegrino v AMPCO, #137111, [see, The Michigan Lawyer, “Judicial disqualification: To participate or not participate? That is the question“] and that this change in procedure has significant consequences for the new disqualification process.

In Pellegrino, this Court allowed other justices an immediate opportunity to respond to my statement to deny the disqualification motion directed toward me. In the instant case, justices are not to be afforded a similar opportunity until after, and unless, the attorney who initially moved the disqualification motion against Justice Hathaway has requested that her decision be reviewed by the full court.

Thus, one procedure entitles justices to review the disqualification decisions of other justices, while the other procedure allows such review only if sought by the attorney.

What’s the harm in that? Plenty, according to Markman:

Relevant to the instant procedure is that the motion for disqualification here was filed on Oct. 16, 2009. Now, more than six months later, a denial and an accompanying statement have been issued, and yet the process may still not be close to an end.

Defense counsel will now be entitled to respond to the targeted justice, the targeted justice will then be allowed to respond to defense counsel, the other six justices will then assess these ongoing exchanges between the lawyer and the justice, these other justices are then obligated to respond with their own statements explaining their decisions as to whether the targeted justice can participate in the case, and then finally the targeted justice will be entitled to a responsive or dissenting statement if he or she disagrees with the court majority.

Thus, an entire term of this Court will likely have passed and there will have been no resolution of the dispute that has brought this criminal appeal to the Michigan Supreme Court in the first place.

Not only then does the instant procedure improperly confer a monopoly upon lawyers in triggering full Court review of disqualification decisions, but it extends the disqualification process to unreasonable lengths to the detriment of justice.

The tail now wags the dog where a disqualification motion has been made, and it is quite certain that some number of such motions will be incentivized in order to delay rather than to facilitate justice.

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