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.”