Fieger v. Michigan Supreme Court

In 1997, a jury in the Oakland Circuit Court returned a $15 million verdict in a medical malpractice action in which [attorney Geoffrey] Fieger represented the plaintiff Salvatore Badalamenti. On appeal, the defendants hospital and physician claimed that the verdict was based on insufficient evidence and that they had been denied their constitutional right to a fair trial by Mr. Fieger's intentional misconduct After hearing argument, a three-judge panel of thePage 958Court of Appeals, Jane Markey, Richard Bandstra, and Michael Talbot, unanimously ruled on August 20, 1999, that the defendants were entitled to judgment notwithstanding the verdict because the plaintiff had failed to provide legally sufficient evidence that would justify submitting the case to the jury.[Badalamenti v. William Beaumont Hosp.-Troy,237 Mich.App. 278,602 N.W.2d 854(1999).] The panel also held that Mr. Fieger's repeated misconduct by itself would have warranted a new trial. In particular, the Court of Appeals indicated that Mr. Fieger (1) without any basis in fact, accused defendants and their witnesses of engaging in a conspiracy, collusion, and perjury to cover up malpractice, (2) asserted without any basis in fact that defense witnesses had destroyed, altered, or suppressed evidence, and (3) insinuated without any basis in fact that one of the defendants had abandoned the plaintiffs medical care to engage in a sexual tryst with a nurse. The panel described Mr. Fieger's misconduct as "truly egregious" and "pervasive" and concluded that it "completely tainted the proceedings."Id.at [860].

Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that which he had exhibited during theBadalamentitrial and on his then-daily radio program in Southeast Michigan, continued by addressing the three appellate judges in that case in the following manner, "Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss my ass, too." Mr. Fieger, referring to his client, then said, "He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the finger he should keep is the one where he should shove it up their asses."

Two days later, on the same radio show, Mr. Fieger called these same judges "three jackass Court of Appeals judges." When another person involved in the broadcast used the word "innuendo," Mr. Fieger stated, "I know the only thing that's in their endo should be a large, you know, plunger about the size of, you know, my fist." Finally, Mr. Fieger said, "They say under their name, `Court of Appeals Judge,' so any-body that votes for them, they've changed their name from, you know, Adolf Hitler and Goebbels, and I think — what was Hitler's — Eva Braun, I think it was, is now Judge Markey, she's on the Court of Appeals."

Subsequently, Mr. Fieger filed a motion for reconsideration before the same panel. After that motion was denied, this Court denied Mr. Fieger's application for leave to appeal on March 21, 200[1].[Badalamenti v. William Beaumont Hosp.-Troy,463 Mich. 980,624 N.W.2d 186(2001).]

On April 16, 2001, the Attorney Grievance Commission (AGC), through its Grievance Administrator, filed a formal complaint with the ADB [Attorney Discipline Board], alleging that Mr. Fieger's comments on August 23 and 25, 1999, were in violation of several provisions of the Michigan Rules of Professional Conduct, including MRPC 3.5(c), MRPC 6.5(a), and MRPC 8.4(a) and (c). While the complaint was pending, the parties entered into a stipulation. In return for Mr. Fieger's agreement not to contest that his remarks had violated MRPC 3.5(c) and MRPC 6.5(a), the charges alleging a violation of MRPC 8.4(a) and (c) would be dismissed. The parties further stipulated the sanction of a reprimand. The agreement was specifically conditioned on Mr. Fieger's being allowed to argue on appeal, while the discipline was stayed, both the applicabilityPage 959and the constitutionality of MRPC 3.5(c) and MRPC 6.5(a).[¹] Mr. Fieger maintained that the rules were inapplicable because his remarks were made after the case was completed and were not made in a courtroom. Further, he maintained that the two rules were unconstitutional because they infringed hisFirstAmendment rights.

On appeal to the ADB, with one member recused, the remaining eight members of the ADB issued three opinions. The lead opinion, signed by board members Theodore J. St. Antoine, William P. Hampton, and George H. Lennon, concluded that MRPC 3.5(c) and MRPC 6.5(a) did not apply to Mr. Fieger's comments because they were made outside the courtroom in a case they regarded as completed. They further observed that, if the rules did apply, then they were in violation of theFirstAmendment. A second opinion, signed by members Lori McAllister and Billy Ben Baumann, agreed that Mr. Fieger's comments were protected by theFirstAmendment, but dissented from the lead opinion's conclusion that the rules only apply to remarks made within the court-room. A third opinion, agreeing in part with the second opinion, and signed by members Marie E. Martell, Ronald L. Steffens, and Ira Combs, Jr., held that Mr. Fieger's remarks, even though made outside the courtroom, were prohibited by the rules, and that the remarks were not protected by theFirstAmendment.

The sum of all this was that a majority (albeit not the same majority for each issue) concluded that the two rules applied to Mr. Fieger's out-of-court statements, while a different majority concluded that those rules were in violation of theFirstAmendment.

The AGC, through its Grievance Administrator, sought leave to appeal in this Court. We granted leave to appeal to consider whether the remarks by Mr. Fieger, although uncontestedly discourteous, undignified, and disrespectful, nevertheless did not warrant professional discipline because they were made outside the courtroom and after the Court of Appeals had issued its opinion. We also granted leave to appeal to consider whether the ADB possesses the authority to decide issues of constitutionality and whether the two rules in question are constitutional.

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7.472 Mich. 1244,696 N.W.2d 703(2005). Mr. Fieger then filed a notice of removal on June 8, 2005, removing the case to federal court. Because Mr. Fieger could not "meet his burden to show removal is proper," the federal district judge granted the Grievance Administrator's motion to remand the case back to this Court on October 19, 2005.Griev. Adm'r, 409 F.Supp.2d 858, 865 (E.D.Mich. 2005). Mr. Fieger appealed to the Sixth Circuit Court of Appeals. On March 10, 2006, the Sixth Circuit summarily affirmed the district court, concluding that "there is no conceivable basis to support removal of the action" under28 U.S.C. § 1443(1). Unpublished order, entered March 10, 2006 (Docket No. 05-2572).

(1) he or she has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. In the context of a declaratory judgment action, allegations of past injury alone are not sufficient to confer standing. The plaintiff must allege and/or demonstrate actual present harm or a significant possibility of future harm.

InAdult Video Ass'n v. United States Department ofJustice,71 F.3d 563(6th Cir. 1995), we explained thatFirstAmendment chill typically constitutes the"reasonwhy the governmental imposition is invalid rather than . . . the harm which entitles [a party] to challenge it."Id.at 566 (quotingUnited PresbyterianChurch [in the U.S.A. v. Reagan],738 F.2d [1375], [] 1378 [(1984) ]). This understanding of chill comports with the underlying rationales of intersectingFirstAmendment doctrines. For example, the doctrine of overbreadth relies on a "chill" theory to permit a litigant — whoalready has standingby virtue of demonstrating a concrete harm — to challenge a rule thatPage 963may only affect others.See Midwest Media Prop.,L.L.C. v. Symmes Twp.,503 F.3d 456,463(6th Cir. 2007) ("[O]verbreadth does not excuse a party's failure to `allege an injury arising from the specific rule being challenged . . . .'" (quotingPrime Media,Inc. v. City of Brentwood,485 F.3d 343,351(6th Cir. 2007)));United Presbyterian Church,738 F.2d at 1379("It is only in this . . . respect that `chilling effect' has anything to do with the doctrine of standing: It permits a person, who has standing to challenge governmental action because of the concrete harm it causes him, to assert a deficiency which may not affect him but only others."). In order to have standing, therefore, a litigant alleging chill must still establish that a concrete harm — i.e., enforcement of a challenged statute — occurred or is imminent.See Am. Library Ass'n v. Barr,956 F.2d 1178,1193(D.C. Cir. 1992) ("[W]hether plaintiffs have standing . . . depends on how likely it is that the government will attempt to use these provisions against them . . . and not on how much the prospect of enforcement worries them.").

The claim at stake here involves Morrison's choice to chill his own speech based on his perception that he would be disciplined for speaking. But whether he would have been so punished, we can only speculate. The school district . . . stated that its former discipline policy regarding instances of harassment or discrimination "shall not be interpreted as applying to speech otherwise protected under the state or federal constitutions where the speech does not otherwise materially or substantially disrupt the educational process." The record is silent as to whether the school district threatened to punish or would have punished Morrison for protected speech in violation of its policy. Morrison asks us, essentially, to find a justiciable injury where his own subjective apprehension counseled him to choose caution and where he assumed — solely on the basis of the Board's 2004-05 policies and without any specific action by the Board — that were he to speak, punishment would result. We decline to do so. Absent a concrete act on the part of the Board, Morrison's allegations fall squarely within the ambit of "subjective chill" that the Supreme Court definitively rejected for standing purposes.Laird,408 U.S. at 13,92 S.Ct. 2318(quotation marks omitted). Morrison cannot point to anything beyond his own "subjective apprehension and a personal (self-imposed) unwillingness to communicate,"ACLU [v. Nat'l Sec.Agency],493 F.3d [644,] [ ] 662 [(6th Cir. 2007)],Page 964and those allegations of chill, without more, fail to substantiate an injury-in-fact for standing purposes.

greater restraint . . . is permissible when a case is ongoing than when it is completed. As the United States Supreme Court said inGentile [v. State Bar ofNevada,501 U.S. 1030,1070,111 S.Ct. 2720,115 L.Ed.2d 888(1991),] "`When a case is finished, courts are subject to the same criticism as other people, but the propriety and necessity of preventing interference with the course of justice by premature statement, argument or intimidation hardly can be denied.'" (Citation omitted.) Accordingly, "the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press. . . ."Id.at 1074,111 S.Ct. 2720.

[t]o call a judge a "jackass," a "Hitler," a "Goebbels," a "Braun" and to suggest that a lawyer is "declaring] war" on them and that the judge should "[k]iss [the lawyer's] ass," or should be anally molested by finger, fist, or plunger, is, to say the least, not to communicate information; rather, it is nothing more thanpersonal abuse.We conclude that such coarsenessin the context of an officer of thecourt participating in a legal proceedingwarrants noFirstAmendment protection when balanced against this state's compelling interest in maintaining public respect for the integrity of the legal process.UnitedStates v. O'Brien,391 U.S. 367,377,88 S.Ct. 1673,20 L.Ed.2d 672(1968).

to show a palpable threat of future injury necessary to achieve standing for declaratory and injunctive relief, Grendell must present evidence establishing: (1) that he is bringing or highly likely to bring a lawsuit before the Ohio Supreme Court; (2) that such lawsuit is allegedly frivolous, exposing him to sanctions under Rule XIV, § 5; (3) that the Ohio Supreme Court would, in its discretion, impose such sanctions; and (4) that the imposition of those sanctions would violate due process. Such a chain of events is simply too attenuated to establish injury in fact, and to confer the required standing in this case.

"pursuant to the authorization, instruction, and encouragement of Defendant City of Los Angeles, regularly and routinely apply these choke holds in innumerable situations where they are not threatened by the use of any deadly force whatsoever," that numerous persons have been injured as the result of the application of the chokeholds, that Lyons and others similarly situated are threatened with irreparable injury in the form of bodily injury and loss of life, and that Lyons "justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse."

Lyons has failed to demonstrate a case or controversy with the City that would justify the equitable relief sought. Lyons' standing to seek the injunctionPage 968requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers. Count V of the complaint alleged the traffic stop and choking incident five months before. That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.

Although we are urged to consider the merits of the Court of Appeals' holding, we are unable to do so, because this suit does not now present a live "case or controversy." This suit was brought to determine the police officers' liability for the death of appellee's son. That issue has been decided, and there is no longer any possible basis for a damages claim. Nor is there any possible basis for a declaratory judgment. For a declaratory judgment to issue, there must be a dispute which calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts. Here, . . . appellee's primary claim of a present interest in the controversy is that he will obtain emotional satisfaction from a ruling that his son's death was wrongful. Emotional involvement in a lawsuit is not enough to meet the case-or-controversy requirement. . . .

Unlike three of the appellees inYounger v. Harris, 401 U.S. [37,][] 41[,91 S.Ct. 746,27 L.Ed.2d 669] [(1971)], petitioner has alleged threats of prosecution that cannot be characterized as "imaginary or speculative,"id., at 42[,91 S.Ct. 746]. He has been twice warned to stop hand-billing that he claims is constitutionally protected and has been told by the police that if he again handbills at the shopping center and disobeys a warning to stop he will likely be prosecuted. The prosecution of petitioner's handbilling companion is ample demonstration that petitioner's concern with arrest has not been "chimerical,"Poe v. Ullman,367 U.S. 497,508,81 S.Ct. 1752,6 L.Ed.2d 989(1961). In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.See, e.g., Epperson v. Arkansas,393 U.S. 97,89 S.Ct. 266,21 L.Ed.2d 228(1968). Moreover, petitioner's challenge is to those specific provisions of state law which have provided the basis for threats of criminal prosecution against him.Cf. Boyle v.Landry,401 U.S. 77,81,91 S.Ct. 758,27 L.Ed.2d 696(1971);Watson v. Buck,313 U.S. 387,399-400,61 S.Ct. 962,85 L.Ed. 1416(1941).

Our analysis must begin with the recognition that, where threatened action bygovernmentis concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat — for example, the constitutionality of a law threatened to be enforced. The plaintiffs own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction.

There is no dispute that [the case and controversy] standards would have been satisfied if petitioner had taken the final step of refusing to make royalty payments under the 1997 license agreement. Respondents claim a right to royalties under the licensing agreement. Petitioner asserts that no royalties are owing because the Cabilly II patent is in-valid and not infringed; and alleges (without contradiction) a threat by respondents to enjoin sales if royalties are not forthcoming.The factual and legal dimensions ofthe dispute are well defined and, but for"petitioner's continuing to make royalty payments,nothing about the dispute would render it unfit forjudicial resolution.

"In substance, [appellant's] argument is that, because the apparatus [of censorship] operates in a statutory context in which judicial review may be too little and too late, the Maryland statute lacks sufficient safeguards for confining the censor's action to judicially determined constitutional limits. . . ."

the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.

These events, together with repeated announcements by appellees that the appellant organization is a subversive or Communist-front organization, whose members must register or be prosecuted under the Louisiana statutes, have, appellants allege, frightened off potential members and contributors. Seizures of documents and records have paralyzed operations and threatened exposure of the identity of adherents to a locally unpopular cause. Although the particular seizure has been quashed in the state courts, the continuing threat of prosecution portends further arrests and seizures, some of which may be upheld and all of which will cause the organization inconvenience or worse.

. . .

Not only does the complaint allege far more than an "injury other than that incidental to every criminal proceeding brought lawfully and in good faith," but appellants allege threats to enforce statutory provisions other than those under which indictments have been brought. Since there is no immediate prospect of a final state adjudication as to those other sections — if, indeed, there is any certainty that prosecution of the pending indictments will resolve all constitutional issues presented — a series of state criminalPage 973prosecutions will not provide satisfactory resolution of constitutional issues.

First, appellants have attacked the good faith of the appellees in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants' civil rights activities.

. . .

[A]n interpretation rendering the statute inapplicable . . . would merely mean that appellants might ultimately prevail in the state courts. It would not alter the impropriety of appellees' invoking the statute in bad faith to impose continuing harassment in order to discourage appellants' activities, as appellees allegedly are doing and plan to continue to do. Second, appellants have challenged the statutes as overly broad and vague regulations of expression. We have already seen that where, as here, prosecutions are actually threatened, this challenge, if not clearly frivolous, will establish the threat of irreparable injury required by traditional doctrines of equity.

Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants. On its face, the statute provides that a court"maydeclare the rights and other legal relations of any interested party seeking such declaration[.]" The statute's textual commitment to discretion, and the breadth of leeway we have always understood it to suggest, distinguish the declaratory judgment context from other areas of the law in which concepts of discretion surface. . . . When all is said and done, we have concluded, "thepropriety of a declaratory relief in a particular casewill depend upon a circumspect sense of its fitnessinformed by the teachings and experience concerningthe functions and extent of federal judicial power."