Thurston, In re, Docket No. 184811

• Court: Court of Appeal of Michigan (US)
• Citation: 226 Mich.App. 205,574 N.W.2d 374
• Docket Number: Docket No. 184811
• Parties: In re Jane M. THURSTON. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. SHIER, Jr., Defendant-Appellant.
• Decision Date: 31 October 1997

Page 374

574 N.W.2d 374 226 Mich.App. 205 In re Jane M. THURSTON.
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Robert L. SHIER, Jr., Defendant-Appellant. Docket No. 184811. Court of Appeals of Michigan. Submitted Oct. 16, 1996, at Lansing.
Decided Oct. 31, 1997, at 9:00.
Released for Publication Feb. 10, 1998.

Page 375

[226 Mich.App. 206] Joel M. Boyden, Grand Rapids, Presenter of Evidence and Arguement.

Kenneth M. Magill, Detroit, David M. Lawson, Birmingham, for Jane M. Thurston.

James W. Burdick (Robyn B. Frankel, Bloomfield Hills, Mark J. Kriger, Detroit, and Thomas W. Cranmer, Bloomfiels Hills, of counsel), Bloomfield Hills, amicus curiae for National Association of Criminal Defense Lawyers.

Frank D. Eaman, Harper Woods, James C. Thomas, Detroit, and Walter J. Piszczatowski, Bloomfield Hills, amicus curiae, for Criminal Defense Attorneys.

Before CORRIGAN, C.J., and TAYLOR and D.A. JOHNSTON III ^*, JJ.

PER CURIAM.

I. CASE HISTORY

This Court's unpublished opinion per curiam, reversing defendant's conviction, was released on June 24, 1997 (Docket No. 184811); the Michigan Supreme Court has denied the prosecutor's application for leave to appeal that decision. ¹ In that opinion, this Court made the following comments in footnote 2:

The difficulty in resolving this appeal was compounded by the oral argument we heard in this case. Attorney Jane Thurston, who was representing defendant at the time, [226 Mich.App. 207] made false representations to this Court. Ms. Thurston told this Court

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that defendant had been convicted of CSC I "even though he never had sex with this woman." This statement was patently false. Defendant gave two taped statements to the police and he admitted having consensual sex with the complainant in both statements. Consent was the defense at trial. The complainant clearly stated in her taped statements and again at trial that she had sex with defendant. There never has been any question that defendant and the complainant had sex. The only question was whether the sex was consensual. (The prosecutor inexplicably failed to advise this Court that Ms. Thurston's argument was patently false at oral argument). We further note that Ms. Thurston argued to this Court that trial counsel was ineffective because he did not have the complainant's taped statements to the police played for the jury to hear in that the complainant "was laughing through the statements" in contrast with crying during trial. This statement was false. We have listened to the two taped statements of the complainant and it certainly cannot be said that the complainant laughs throughout the taped statements. In fact, we note that the complainant can be heard crying twice during her second statement. We are deeply upset that an attorney would make such false representations to this Court during oral argument. We direct the Clerk of this Court to send a copy of this opinion to Ms. Thurston and to the Attorney Grievance Administrator for investigation and appropriate action because this portion of Ms. Thurston's argument appears to have been in violation of MRPC 3.1, 3.3 and 4.1. We order Ms. Thurston to appear before this Court on August 5, 1997 at 3:00 p.m. at the Court's Lansing third floor courtroom to show cause why she should not be held in contempt. M.C.L. § 600.1701(c); M.S.A. § 27A.1701(c); M.C.L. § 600.1715; M.S.A. § 27A.1715. in rE oliver, 333 U.S. 257, 68 S.ct. 499, 92 L.ed. 682 (1948); in rE scott, 342 Mich. 614, 622, 71 N.W.2d 71 (1955). See also Chambers v. NASCO, 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Alternatively, Ms. Thurston may pay a fine of $250 to this Court prior to said date.

[226 Mich.App. 208] In consequence of this portion of the opinion, a formal order to show cause, subsequently amended, was issued, and respondent Thurston opted to show cause in lieu of paying the suggested fine. ² At the indicated time and place, after denying respondent's motion for disqualification of the entire panel, ³ an adjournment [226 Mich.App. 211] was granted at the request

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of respondent's counsel. ⁴ This Court, in the order adjourning the hearing, included scheduling provisions. ⁵ In a separate order, ⁶ [226 Mich.App. 212] following the suggestion in Young v. United States ex rel. Vuitton et Fils, S A, 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), and as a means of facilitating a separation between the Court's accusatorial and adjudicative roles, Joel M. Boyden, former President of the State Bar of Michigan, having agreed to serve pro bono publico, was appointed to function as presenter of evidence in the show cause proceedings and to otherwise represent the Court of Appeals in any direct or collateral review proceedings.

Pursuant to the scheduling order, ⁷ respondent filed a motion to dismiss, which was

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denied, and a motion [226 Mich.App. 213] for waiver of fees, which was also rejected. Only the court-appointed presenter opted to file a hearing brief. ⁸ Two amici curiae were permitted to file briefs, [226 Mich.App. 214] and their joint brief has been received and considered.

II. MOTION PRACTICE HISTORY

In denying the motion to dismiss, which was grounded upon the assertion that the order to show cause did not charge that respondent acted "wilfully," this Court observed:

The motion to dismiss is DENIED. "Willfulness" is not an element of a charge that an attorney is in contempt of court by virtue of "any misbehavior in their office or trust" under M.C.L. § 600.1701(3); M.S.A. § 27A.1701(3), and accordingly the failure to specify that the alleged contemnor acted wilfully is not fatal to the validity of the charge detailed in the amended order to show cause. In re Henry, 25 Mich.App. 45, 55, 181 N.W.2d 64 (1970). Furthermore, granting arguendo that an order to show cause is subject to the same requirements as an indictment, information, or other charging document, M.C.L. § 761.1(d); M.S.A. § 28.843(d), and further assuming that other aspects of the charged conduct must be shown to have been perpetrated "willfully" in order to adjudge the alleged contemnor guilty of contempt, nonetheless, "willfulness" need not be alleged in the order to show cause. M.C.L. § 767.59; M.S.A. .s 28.999, although the order to show cause would in any event be subject to amendment to cure any such defect of form. M.C.L. § 767.76; M.S.A. § 28.1016. To that end reasonable inferences from the facts set forth in the charge and supporting opinion of the court suffice to put the alleged contemnor on notice that her conduct was contemptuous because committed wilfully. In re Henry, supra; In re Albert, 383 Mich. 722, 724-725, 179 N.W.2d 20 (1970) (holding both that the Court of Appeals may proceed other than by affidavit to institute contempt proceedings by means of an order to show cause, in particular, by judicial notice of its own records, and that it may do so on its own motion "without becoming so personally interested as to be disqualified.")

[226 Mich.App. 215] The Court notes that this order addresses only those aspects of the present proceedings that represent an exercise of its criminal contempt powers, and not the separate

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and independent civil remedial side of its inherent powers. Chambers v. NASCO, 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 [1991]; Gray v Clerk of Common Pleas Court, Mich. 588, 594; 115 N.W.2d 411 [1962]; People v. Brown, 238 Mich. 298, 300, 212 N.W. 968 (1927); Const 1963, art 6, § 1. [Unpublished order of the Court of Appeals, entered August 28, 1997 (Docket No. 184811).]

In rejecting the motion to waive fees, the Court opined that it was without proper authority to grant a waiver in the absence of a claim of financial inability to defray those fees. The waiver of fees was not sought on the basis of inability to pay, but on the basis of an assertion that if such proceedings were pending in a district or circuit court there would be no fees. Underlying the motion appeared to be an assumption that somehow it is unfair to require respondent to pay motion and other standard filing fees when criminal defendants in trial courts are not required to pay motion fees. Any such contention misapprehends the relevant principles of due process and equal protection. Under the Fourteenth Amendment, fees must be waived only for those unable to pay them as a function of the constitutional right of access to the courts, Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); however, respondent made no claim or showing of such inability. And, while motion fees may not be required in district or circuit court criminal proceedings, that is a function of legislation, not constitutional principle. See, e.g., M.C.L. § 600.8371; M.S.A. § 27A.8371, establishing filing fees in district courts for civil cases only. In contrast, legislation governing the Court of Appeals, [226 Mich.App. 216] M.C.L. § 600.321; M.S.A. § 27A.321, and the rule establishing the fee schedule for the Supreme Court, MCR 7.319(B)(7), make no such distinction, and thus apply equally to civil and criminal matters. All litigants in the Court of Appeals and the Supreme Court are treated alike, whether as appellants or appellees, or as parties to original proceedings, irrespective of the nature of the proceedings. ⁹ Hence, our order denying the motion to waive fees provided:

The motion to waive filing fees is DENIED. No claim of indigency within MCR 2.002 having been advanced, the Court is without authority to waive fees. MCR 7.211(A)(3); M.C.L. .s 600.321; M.S.A. § 27A.321; Gracey v. Grosse Pointe Farms Clerk, 182 Mich.App. 193, 214, 452 N.W.2d 471 (1989); see also Hill v. Michigan, 488 F.2d 609 (C.A.6, 1973), cert. den. 416 U.S. 973, 94 S.Ct. 1999, 40 L.Ed.2d 563 [1974].

III. FACTS

At the hearing, the presenter went forward with proofs establishing, beyond a reasonable doubt, that the statements attributed to respondent during oral argument in this Court's June...