Legislating against Santa Cox

“Political,” “misguided” and “malevolent” fumed Michigan Attorney General and 2010 Republican gubernatorial hopeful Mike Cox last week at a Michigan House Judiciary hearing.

The object of Cox’s wrath? Legislation sponsored by committee chair Mark Meadows (D-East Lansing) that would prevent the AG from handing out settlement money as he chooses when there is no aggrieved party to receive the funds.

Last March, Cox wanted to shower two Grand Rapids-area parks with $250,000 each. The money was part of a settlement Cox obtained from Countrywide Finance, a large mortgage lender that Cox accused of predatory lending practices.

This did not sit well with some politicos, who were upset that Cox had consulted with Peter Secchia, a Republican Party heavyweight who’s in charge of fundraising for the parks. A report in The Grand Rapids Press indicated that Democratic Kent County Commissioner Brandon Dillon felt that Cox’s proposed donation might have had as much to do with the AG’s political ambitions as it did with philanthropy.

Cox said his critics were the ones dragging politics into the matter but announced a last-minute change of plans and gave the money to Heart of West Michigan United Way.

It didn’t take Meadows long to introduce HB 4799, which, in a nutshell, would require left-over settlement money to be deposited into the state’s general fund to be disbursed through the appropriations process, instead of leaving it up to Cox to decide which charity or deserving institution should be favored.

Cox characterized the legislation as an attack on the power of his office. Meadows, according to a report in The Detroit News, says it’s not about curbing Cox, it’s about ensuring that money is disbursed transparently.

Otherwise, as the Detroit News quoted committee member Lisa Brown (D-West Bloomfield), Cox gets “to play Santa Claus almost. How do you decide who’s naughty and who’s nice?”

No one is questioning whether the money is winding up in deserving hands. It is, plain and simple.

But the proposed legislation prevents Cox from playing Santa Claus and would eliminate any suspicion, founded or unfounded, that there is any electioneering wrapped up with the gifts.

From the judicial pen

“There is no right of revolution in a United States District Court.”

Sixth Circuit Judge Raymond M. Kethledge, discussing criminal contempt charges against Herbert S. Moncier, a Tennessee defense attorney who disobeyed U.S. District Court Judge J. Ronnie Greer’s order to remain silent.

Moncier claimed he had an ethical duty to prevent Greer from questioning his client about a possible conflict of interest arising from his dual representation of two defendants.

Be that as it may, Kethledge wrote that:

“The lawyer’s duty is not to defy the judge’s orders, but to follow them. It is true enough that judges, like other humans, will make mistakes, and that those mistakes will sometimes be to the detriment of a client’s rights. But that is what Circuit Courts exist to remedy. ‘Lawyers are required to obey even incorrect orders; the remedy is on appeal.’ … We entirely agree with Judge Greer that ‘someone must be in control of what happens in a courtroom[,]’ and that the someone is ‘the trial judge, not the lawyer for a criminal defendant … .'”

Greer found Moncier guilty of two charges of criminal contempt but Moncier will get a second bite of the apple.

Under Federal R. Crim. P. 42(a)(3), Moncier’s behavior involved “disrespect toward or criticism of a judge.” The rule provides that in such cases, the judge can’t hear the case.

According to Kethledge:

“Judge Greer’s finding that Mr. Moncier’s conduct was not disrespectful towards him personally, in a manner requiring disqualification, can be attributed less to an error of judgment, than to an excess of magnanimity. We take a less forgiving view of Mr. Moncier’s conduct; and we conclude that, fairly considered, it did involve disrespect towards Judge Greer within the meaning of the rule, with the ironic consequence that he gets a new trial.”

That new trial, wrote Kethledge, will be before a different judge.

The case is United States v. Moncier.