Grievance Administrator v. Fieger, Docket No. 127547.

• Decision Date: 21 December 2006
• Docket Number: Docket No. 127547.
• Citation: 477 Mich. 1228,729 N.W.2d 451
• Parties: GRIEVANCE ADMINISTRATOR, Petitioner-Appellant, v. Geoffrey N. FIEGER, Respondent-Appellee.
• Court: Michigan Supreme Court

729 N.W.2d 451

477 Mich. 1228

GRIEVANCE ADMINISTRATOR, Petitioner-Appellant, v. Geoffrey N. FIEGER, Respondent-Appellee.

Docket No. 127547.

Supreme Court of Michigan.

December 21, 2006.

On order of the Court, the respondent-appellee's motion for a stay of proceedings is DENIED.

This Court previously determined in this case that the First Amendment of the United States Constitution does not bar the application of the Michigan Rules of Professional Conduct to statements made by respondent-attorney Geoffrey Fieger in the course of a pending lawsuit in the Court of Appeals. Specifically, Mr. Fieger stated that he "declared war upon" the judges hearing his lawsuit, that such judges could "kiss his ass," that his client should "shove [his finger] up their asses," that they were "three jackass Court of Appeals judges," that "the only thing that's in their `endo' should be a large plunger about the size of my fist," and that the judges had "changed their name from Adolf Hitler and Goebbels, and—what was Hitler's [mistress]—Eva Braun."

Such statements were determined to be in violation of MRPC 3.5(c) (which prohibits undignified or discourteous conduct by an attorney toward the court) and MRPC 6.5(a) (which requires an attorney to treat with courtesy and respect all persons involved in the legal process). As a result, in accordance with an agreement entered into between Mr. Fieger and the Attorney Grievance Commission, he is to be reprimanded but allowed without limitation to continue his practice of law.

We are now confronted with Mr. Fieger's motion that this Court "stay" its judgment pending his application for certiorari with the United States Supreme Court. Such "stay" would delay the implementation of the Attorney Grievance Commission's order of reprimand.

This Court may grant a "stay" of its judgments pending applications for certiorari when "irreparable injury would be suffered by the failure" to do so. Red Star Motor Drivers' Association v. Detroit, 236 Mich. 422, 424-425, 210 N.W. 496 (1926). That such a "stay" is truly extraordinary is reflected by the fact that we can identify only a single case over the past two decades in which such a stay has been granted by this Court. Romein v. General Motors (Docket No. 83830), December 27, 1990. Rather, it is almost always the case that the judgments of this Court, as with those of every other Supreme Court in the Union, are not "stayed" pending applications for United States Supreme Court review, in part because of the rarity of that Court granting such review.

Despite the arguments of our dissenting colleagues, Mr. Fieger's motion must be denied simply because there is no evidence whatsoever that he would suffer any "irreparable injury" by this Court's failure to grant a "stay." He can continue to practice law during his application for certiorari and, if he prevails in the United States Supreme Court, his reprimand will be undone. This is not a hard case or a close call, in our judgment.

In light then of this Court's very clear historical practice—that is, granting "stays" under only the most truly extraordinary circumstances—we can only observe with wonderment the dissenters' empassioned arguments that the present case involves such circumstances.

This Court (including without exception the dissenting Justices) has not granted "stays" when persons were incarcerated in prison pending United States Supreme Court review; it has not granted "stays" when persons' fortunes and properties were at stake pending such review; it has not granted "stays" when the interpretation of laws and constitutions was in controversy pending such review; and it has not granted "stays" even when matters of child custody and parental termination were in dispute pending such review. Yet, the dissenting Justices insist that we must grant this almost-unprecedented relief in the instant case in which they have barely labored to demonstrate any "irreparable injury." It is not this majority that must demonstrate why the law should not be applied in its normal fashion, but the dissenters that must demonstrate why the law should be applied, as they propose, in an abnormal fashion.

Finally, concerning the various proposals offered by the dissenting Justices for resolving judicial disqualification motions —a majority of which have come from respondent in recent years—we do not believe that all such proposals are necessarily unreasonable, merely that it is also not unreasonable to continue to abide by disqualification procedures that have been followed in this Court since its inception, that obtain within the overwhelming number of state judiciaries—as well as within the federal courts and the United States Supreme Court—and that have been abided by each of the dissenting Justices themselves for periods of between ten and twenty-four years on this Court without apparent previous concern.

TAYLOR, C.J., concurs and states as follows:

I concur in the order denying the stay. I write separately to state that I and my colleagues joining in this order cannot respond to Justice Weaver's selective and misleading disclosures of our conference deliberations and internal memorandums because we view her disclosure as a violation of Administrative Order No. 2006-8, and a breach of this Court's deliberative process. We have struggled with this matter for months and, by order dated December 20, 2006, seek public comment on how the integrity of this Court's deliberative process can be maintained in the light of a justice who feels no obligation to respect the confidentiality that has always characterized the deliberations of this Court, the United States Supreme Court and every other appellate court of the United States. It must be noted that, despite the fact that a justice of this Court has now engaged, and continues to engage, in the unprecedented act of revealing deliberative confidences, every word of every statement of hers has been made public exactly as she has written it.

I repeat again the questions that the Court has posed to the public for consideration at our public hearing on January 17, 2007: Should AO 2006-8, which formally establishes the deliberative privilege rule, be retained and, if it is retained, what means of enforcement or sanction, if any, are properly adopted in response if a justice violates it?

CORRIGAN, YOUNG, and MARKMAN, JJ., join the statement of TAYLOR, C.J.

MICHAEL F. CAVANAGH, J., dissents and states as follows.

I would grant the motion for a stay of proceedings. As discussed in my dissent in Grievance Administrator v. Fieger, 476 Mich. 231, 719 N.W.2d 123 (2006), I believe that the majority violated attorney Geoffrey Fieger's First Amendment rights when it held that his comments were not political speech protected by the United States and Michigan Constitutions. Geoffrey Fieger is raising this issue in his petition to the United States Supreme Court for a writ of certiorari, as well as raising the matter of how judicial disqualifications are handled by our Court. Because I believe that our current disqualification process does not afford parties adequate constitutional protections, I also write to express my extreme disapproval of the majority's decision to abandon this Court's earlier determination that proposals for the disqualification of justices would be published for public comment. The closure of this administrative file without public comment is expressly contrary to the majority's earlier explicit guarantee that these proposals would indeed be published for public review and comment. See Fieger, supra at 327 n. 17, 719 N.W.2d 123 (Cavanagh, J., dissenting), and In re Haley, 476 Mich. 180, 201 n. 1, 720 N.W.2d 246 (2006) (Cavanagh, J., concurring).

Publishing the proposals for public comment does not require the Court to adopt any of the proposals. It merely provides the public—the very people who the law is meant to protect—the opportunity to express their opinions on a matter that is critical to ensuring fundamental fairness and due process for all Michigan citizens. The majority's disinterest in hearing from the public on this issue can only be viewed as evidence that the majority believes its actions are beyond public scrutiny or its recognition that there is no supportable reason for allowing only the justice asked to disqualify himself to be the determiner of whether disqualification is warranted. No other rational or reasonable explanations for the majority's determined efforts to veil its actions from the public exist.

Notably, in a poll taken by Michigan Lawyer's Weekly, over 80 percent of the respondents indicated that a change in the disqualification process was warranted. Yet, even in the face of such overwhelming support, the majority chooses to not even consider remarks from the public on this issue. Instead of allowing the public to comment on a process that has far-reaching ramifications for Michigan's justice system, the majority chooses to favor continuing a process that provides no due process protections to the parties who appear before this Court.

The process by which justices are disqualified from hearing a case before this Court is not merely a theoretical matter. The disqualification process has very real consequences for the parties who seek justice from this Court, as well as the public at large. Our current practice provides no avenue to redress a decision by a justice who refuses to disqualify himself, no matter how much evidence is produced that the justice is indeed actually biased. To use an exaggerated example to illustrate the flaw in our current policy, consider the following example. Justice X attends a party. He remarks to several people that attorney Smith has nothing to worry about when his case appears before the Court because Justice X "has his back covered" and there is no way that attorney Smith can lose, no matter the merits of the case. These remarks are brought to the attention of attorney Jones,...