James Brady v. Attorney Grievance Commission ( 2010 )

0 o Michigan Supreme Court
Lansing, Michigan
June 23, 20 l 0 Marilyn K€llv,
Chief justice
14()4()9 ' Michael F. Cavanagh
~ Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, ]r.
Stephen ]. Markrrian
~ .lAl\/IES S. BRADY, JON R. MUTH, pima M_ Ha;haway,
BRUCE W. NECKERS,’ MICHAEL A. justices
WALTQN, RGBERT ]. DUGAN,
' L. RGLAND ROEGGE, WILLIAM
W. ]ACK, JR., H. RHETT PINSKY,
JOHN D. TULLY, JOSEPH M.
SWEENEY, PAUL T. SORENSEN,
FREDERICK D. DILLEY, JANET
A. HAYNES, DENNIS C. KOLENDA,
ROBERT L. LALLEY, JR., WILLIAM
S. FARR, and DIANN J. LANDERS,
Plaintiffs,
v SC: 140409
AGC: 2075/08
ATTORNEY GRIEVANCE COl\/ll\/IISSION,
Defendant.
l /
On order of the Court, the complaint for superintending control is considered, and
relief is DENIED, because the Court is not persuaded that it should grant the requested
relief.
HArHAwAY, J. (dissenting).
l would grant the complaint for superintending control and, in lieu of granting the
requested relief, l would direct the Attorney Grievance Cornrnission to vacate its
dismissal of the request for investigation, and to appoint independent legal counsel to
review and investigate the allegations of misconduct against the respondent attorney that
are contained in the request for investigation. l would further direct the appointed
counsel to present findings and conclusions to the Attorney Grievance Comrnission,
which should then reconsider its decision whether to file a formal disciplinary complaint
against the respondent attorney with the Attorney Discipline Board.
WEAVER, J., not participating.
l am not participating in this complaint for superintending control because the
circumstances that l describe below could have raised an appearance of impropriety had l
participated in the case.l l informed the parties in this case of my disqualification in a
letter dated April 20, 2010.2 (A copy of my letter to the parties is attached.) As the
circumstances described in the letter establish, l have done nothing wrong and nothing
unethical. Nevertheless, l followed my long-standing practice for disqualification that
"when in doubt, get out."
This complaint for superintending control, filed January 20l0, arose from the
Attorney Grievance Coinmission’s (AGC) dismissal on November l7, 2009 of the
plaintiffs’ June 27, 2008 request for investigation of alleged attorney misconduct by Paul
J. Fischer, Executive Director and General Counsel of the judicial Tenure Commission
(JTC), in the disciplinary proceeding against judge Steven Servaas. The disciplinary
proceeding against Judge Servaas was reviewed and ruled upon by this Court in In re
Servaas, 484 l\/lich 634 (2009).
ln In re Servaas, attorney Jon l\/luth represented Judge Servaas. This Court’s
decision and opinions in In re Servaas were published for the public on July 3l, 2009.
On August 24, 2009 the JTC filed a motion for rehearing or clarification in this Court.
On September ll, 2009 this Court issued an order denying a motion for rehearing and
containing an additional statement by Chief justice Kelly, which clarified by amendment
her original opinion. Therefore, this Court’s file in In re Servaas closed on September
ll, 2009.
1 This Court recently amended l\/ICR 2.003--Disqualification of judge to include an
appearance of impropriety standard as a ground for disqualification of judges. The newly
amended rule set forth in MCR 2.003(C)(l)(b) states: "The judge, based on objective and
reasonable perceptions, has either (i) a serious risk of actual bias impacting the due
process rights of a party as annunciated in Caperton v A T Massey Coal C0, Inc, 556 US
_____; 129 S. Ct. 2252, 2255; l73 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the
appearance of impropriety standard set forth in Canon 2 of the l\/lichigan Code of Judicial
Conduct."
The test for determining whether an appearance of impropriety exists, as laid out
in Caperton v Massey, is "whether the conduct would create in reasonable minds a
perception that the judge’s ability to carry out judicial responsibilities with integrity,
impartiality and competence is impaired."
2 Plaintiffs Brady et al. consist of: James S. Brady, Jon R. l\/luth, Bruce W. Neckers,
Michael A. Walton, Robert J. Dugan, L. Roland Roegge, William W. lack Jr., H. Rhett
Pinsky, John D. Tulley, Joseph l\/l. Sweeney, Paul T. Sorensen, Fredericl< D. Dilley, Janet
A. Haynes, Dennis C. Kolenda, Robert L. Lalley Jr., William S. Farr, and Diann l.
Landers. The defendant is the Attorney Grievance Commission.
ln mid-September 2009, l briefly encountered my friend and former attorney, l\/lr.
Muth, at the State Bar of l\/lichigan Fellows reception in Dearborn. Given that the file in
In re Servaas had already been closed, l\/lr. Muth and l agreed to meet in Traverse City
for a visit over lunch when he would be passing through town on October l, 2009. At the
time that we agreed to meet, and up until the time l received this Court’s Commissioner
Report in late l\/larch 2010, l had no reason to recall that at the l\/larch 4, 2009 In re
Servaas oral argument, Mr. Fischer stated that "judge Servaas had his attorneys and a
number of others file a grievance against me with the Attorney Grievance Commission."
l\/lr. Fischer made this statement in response to questions about whether the jTC had
authorized or encouraged him to proceed in the manner that he did while handling the
Servaas matter and making an unannounced visit to confront judge Servaas in his
chambers.3
l had no reason to realize that a file for a grievance against Mr. Fischer may have
been opened and an investigation of his conduct may have been ongoing. Under MCR
9.126, such files are sealed.4 l had no official notice of any file’s existence, and l had no
notice of any f`ile’s status.
l\/lr. l\/Iuth and l did meet on October l, 2009 for lunch in Traverse City. He
indicated that he found this Court’s result in In re Servaas strange, convoluted, and
surprisingly close after what he had witnessed during the oral argument.§ l responded
3 The record in In re Servaas contains an audio recording of l\/lr. Fischer’s unannounced
visit to judge Servaas’s chambers on january 16, 2008 and his threat to "drag [judge
Servaas’s] name through the mud" unless he agreed to resign by 9:00 a.m. the following
morning. The recording was made, apparently without the knowledge of l\/lr. Fischer or
judge Servaas, by the State Police 'l`rooper accompanying l\/lr. Fischer on the
unannounced visit to judge Servaas’s chambers. The recording was also made public in
the media, and is available online at
http://blog.mlive.coni/grpress/2008/04/ bv john tunison the.html(last accessed june l8,
2010).
4 l\/lCR 9.l26--Open Hearings; Confidential Files and Records, provides in pertinent
part:
(A) lnvestigations. Except as provided in these rules, investigations
by the administrator or the staff may not be made public. At the
respondent’s option, final disposition of a request for investigation not
resulting in formal charges may be made public.
that his observation was correct and that the vote was originally 6-l in judge Servaas’s
favor. l told him my speculation was that the emphasis and the direction of some
justices’ positions perhaps shifted with recognition that the State Court Administrative
Office (SCAO) may have had more involvement in the Servaas matter than merely
referring such allegations to the jTC for investigation and process according to j'l`C rules.
l reminded Mr. Muth that in my concurrence in Irz re Servaas,é l called for an
investigation of the j TC and any others possibly involved, but that no such investigation
had occurred. lnstead, this Court published six (6) separate opinions,7 resulting in the
convoluted decision that prompted a motion for rehearing or clarification by the j'l`C,
required an amendment for clarification to one justice’s opinion, and led to Mr. l\/luth’s
questions. Mr. l\/luth and l did not discuss or mention any request for an AGC
investigation of Mr. Fischer or the possibility of a complaint for superintending control,
which is the underlying issue of the instant complaint. We did not discuss any possible
allegations of misconduct by l\/lr. Fischer, or the instant complaint, in any way.g
Although Mr. Muth was my attorney at one point in time, he was not my attorney
at any time while In re Servaas was pending, nor when we met in Gctober 2009. To
clarify, l\/lr. Muth is not currently my attorney, and l have not discussed the instant
complaint with him, nor have l had any communication with him since l learned in late
l\/larch 20l0 that the instant complaint had been filed in this Court.g The instant
complaint, while related to the Servaas matter, is a separate and distinct case.
5 See the video of that l\/larch 4, 2009 oral argument, soon to be placed on my personally-
funded website: www.justiceweaver.com.
6 ln my concurring opinion in In re Servaas, l urged this Court to "open an administrative
file to investigate how this matter unfolded, including the events and actions of the
judicial 'l`enure Commission (JTC) and/or others responsible leading up to the jTC’s
recommendation of this case to this Court." 484 l\/lich at 654 (Weaver, j ., concurring). l
note that justice Hathaway signed both my concurring opinion and my lead opinion.
7 See In re Servaas, 484 Mich 634 (2009). The opinion and order will also be at my
personally~funded website: www.justiceweaver.com.
3 At that time, October l, 2009, the instant complaint did not exist. The AGC did not
even dismiss the referral until November l7, 2009. Therefore, l could not possibly have
given Mr. l\/luth any advice regarding the instant complaint for superintending control
when the grounds for this complaint did not even exist
9 l was notified of the instant complaint by Chief justice Kelly and by the
Commissioner’s Report that was prepared for this case. Contrary to the reports in
Lawyers Weekly, as cited by justices Corrigan, Young, and l\/larkman, l have never
Had l realized that any grievance filed against Mr. Fischer by Mr. l\/luth could be
pending with the AGC, l would not have met with l\/lr. l\/luth. Therefore, while there was
nothing unethical about my conversation with l\/lr. l\/luth, l informed the parties that l
must disqualify myself from participating in the instant complaint for superintending
control because of the appearance of bias or impropriety that my meeting with Mr. l\/luth
may have presented.
On April 20, 20l0, l sent my disqualification letter to the parties in this case, and
requested that the parties reply at their earliest convenience, but no later than 28 days
from receipt of my letter.
By letter dated April 30, 20l0, l received notice from attorney-plaintiff Dennis
Kolenda on behalf of the plaintiffs that the 17 plaintiffs waived my disqualification ln
his letter, l\/Ir. Kolenda stated "[t]here is. . .no basis for any objection to justice Weaver’s
continued participation." ln addition, by letter dated April 30, from attorney-plaintiff jon
l\/luth, Mr. l\/luth stated that there is no basis for my disqualification.m l\/lr. l\/luth
explained that his letter "states the facts of [his] communication with justice Weaver and
establishes categorically that there was no violation of any of the Canons or Rules of
Professional Conduct...." He additionally explained "that these facts also clearly
establish that there is no basis [for] justice Weaver to consider disqualification even
under an appearance of impropriety standard." l~laving received no response to my
disqualification statement from the AGC, l did not participate in this complaint for
superintending control.“
At the May l2, 20l0 public administrative conference, justices Corrigan, Young
and l\/Iarkman admitted publicly that on April 28, 2010, they had referred me to the j'l`C
regarding this case.m justices Corrigan, Young and l\/larkman sent the jTC a copy of my
April 20, 20l0 disqualification statement and one page of a hearsay memorandum report
by an AGC investigator, which is contained in the AGC’s sealed file in this Brady v AGC
case. justices Corrigan, Young, and l\/larkman state that l have intentionally left this
suggested that l was the one to notify this Court about my meeting with l\/lr. l\/Iuth. ln
fact, l had no knowledge that my meeting with l\/lr. l\/luth had any relevance to the instant
complaint until l read this Court’s Commissioner’s Report.
w Attached are copies of the April 30, 20l0 letters from Mr. Kolenda and l\/lr. l\/luth.
11 Based on the responses from Mr. l\/luth and l\/lr. Kolenda, l would have withdrawn my
disqualification if the AGC had also sent a similar response.
12 l leave justices Corrigan, Young and Markman to their own concerns about violating
MCR 9.22l(C) by speaking publicly about their referral of me to the jTC.
document out of my statement. However, the reason that l have not attached this
document to my statement is because it is contained within a sealed file. By the majority
order today, that AGC file remains sealed.“
l can only assume that the hearsay memorandum report by an AGC investigator is
the "revealing document" referred to by justices Corrigan, Young, and Markman in their
statement attached to this Order. Given that justices Corrigan, Young, and l\/larkman cast
3 of the 5 votes to deny relief on the complaint for superintending control and effectively
keep the AGC file sealed,m it is ironic and disingenuous that they complain that l have
not supplied a document that is contained within that sealed file. l\/ly colleagues were,
and still are, free to vote to unseal this file.
And contrary to justices Corrigan, Young and Markman’s assertion that they
merely brought this matter to the attention of the jTC and the AGC and will leave it to
those agencies for judgment, justices Corrigan, Young and l\/larkman not only publicly
accused me, but judged me as guilty. The judgments of justices Corrigan, Young and
l\/larkman are apparent when viewing this Court’s l\/lay 12, 20l0 public administrative
conference. Their judgments clearly go beyond "bringing this matter to the attention" of
the jTC and the AGC. To view the May l2, 20l0 public administrative conference,
please see my personally-funded website: www.justiceweaver.com.15
13 Also contained within the AGC’s sealed file is information not sent to the jTC,
containing statements obtained in the AGC investigation which, if true, show that the
SCAG was involved in an investigation of the complaint against judge Servaas. ln
response to justices Corrigan, Young, and l\/larkman’s statement urging me to waive my
right to confidentiality and privilege regarding their jTC referral of me under MCR
9.22l(C), l recommend that justices Corrigan, Young and l\/larkman join me in voting to
unseal all the files in In re Servaas. Waiver has little if anything to do with transparency.
l further recommend that this Court vote to unseal all the AGC files concerning
the referral of l\/lr. Fischer underlying the instant complaint in Brady v AGC, pursuant to
MCR 9. l22(D). For complete transparency, all parts of these matters should be opened to
the public, not just one part at the request of justices Corrigan, Young, and Markman.
11 The vote to deny relief on the complaint for superintending control and effectively
keep the AGC file sealed was 5 to l, with justice Hathaway as the lone vote to grant
superintending control. Given that l am not participating in this matter, l did not vote.
15 ln addition, attached is a june 8, 20l0, letter from Mr. Muth to the Court in which he
brought to the Court’s attention certain inaccurate information that had been reported in
the press and attributed to statements made by members of this Court at the May l2, 20l0
public administrative conference and thereafter.
As the attached correspondence shows, l did not violate any ethical rules or do
anything warranting jTC consideration by discussing In re Servaas with l\/lr. l\/luth after
that case was closed. The only possible "rule" l could have violated was the "Gag Order,"
AO 2006~8,16 which l believe is unconstitutionalw because the "Gag Order" improperly
prohibits speech about a case even after the case is closed. The "Gag Order" is in
violation of both the l\/lichigan Constitution and Canon 3A(6) of the Code of judicial
Conduct;"g and the "Gag Order" is an attempt to forever prevent a justice (in this case
me) from performing the justice’s duty to inform the public about what the justice
believes the public needs to know--no more, no less-regarding how this Court conducts
the people’s judicial business. There is no basis for referring a justice to the jTC for not
following a rule that the justice believes is unconstitutional.
l note that justices Corrigan and Young have also chosen not to abide by a rule -
the disqualification rule - adopted by this Court because they believe it is
unconstitutional. They expressed their positions on this Court’s disqualification rule,
16 AO 2006-8 states:
All correspondence, memoranda and discussions regarding cases or
controversies are confidential. This obligation to honor confidentiality does
not expire when a case is decided. The only exception to this obligation is
that a justice may disclose any unethical, improper or criminal conduct to
the jTC or proper authority.
11 Const 1963, art 6, § 6 requires that:
Decisions of the Supreme Court, including all decisions on
prerogative writs, shall be in writing and shall contain a concise statement
of the facts and reasons for each decision and reasons for each denial of
leave to appeal. When a judge dissents in whole or in part he shall give
in writing the reasons for his dissent. [Emphasis added.]
18 Canon ?>A(6) provides:
A judge should abstain from public comment about a pending or
impending proceeding in any court, and should require similar abstention
on the part of court personnel subject to the judge's direction and control.
This subsection does not prohibit a judge from making public statements
in the course of official duties or from explaining for public information
the procedures of the court or the judge's holdings or actions. [Emphasis
added.]
l\/ICR 2.003, in Pellegrino v Ampco, 485 l\/lich ll34, ll50 (2010), where justice
Corrigan stated: “l do not participate in the majority’s decisions under the
unconstitutional new version of MCR 2.003," and justice Young stated: "As l have
previously stated, MCR 2.003 as amended is unconstitutional."w 485 Mich at ll55.
l make no criticism or objection to justices Corrigan and Young’s choice to not
apply and participate in this Court’s disqualification rule because they believe the rule is
"unconstitutional."
However, justices Corrigan and Young’s approach as to the disqualification rule
as applied to themselves is quite in contrast and inconsistent with their condemnation of
my position that the "Gag Order," AO 2006-8, is unconstitutional, and it is in conflict
with and in violation of Canon 3A(6) of the Code of judicial Conduct and forever
prohibits a justice from performing the justice’s duty to report to the public what the
justice believes the public needs to know--no more, no less--about how the justices
conduct the public’s business.
As these facts illustrate, l have done nothing unethical, and the actions of justices
Corrigan, Young, and Markman amount to nothing more than political maneuvering in
this Supreme Court justice election year. (See my attached l\/lay l3, 20l0 press release,
documenting justice Young’s objection to my serving on this Court.)
Once again, justices Corrigan, Young, and l\/larkman are attempting to confuse the
public by distracting attention from the true reason for my non-participation. l spoke
with an attorney regarding a closed case. Our conversation was limited to that closed
case, and we did not discuss the subject of the attorney grievance referral that arose from
that closed case. Nevertheless, l recused myself from participation in this Court’s review
of the attorney grievance referral that arose from that closed case because these
circumstances could have raised an appearance of impropriety had l participated. As this
statement and its attachments show, l did not provide any information to a party which
could give that party a "strategic advantage" in the attorney grievance referral that arose
from that closed case.
ln their statement to this order, justices Corrigan, Young, and Markman continue
to misstate the facts surrounding this matter. While they are entitled to their opinions,
their opinions are incorrect and based on their continued misstatement of facts and vague,
inaccurate allegations. justices Corrigan, Young, and l\/larkman assert that l provided
19 ln his dissent to the order amending MCR 2.003, justice Young stated: "l respectfully
dissent from the new majority’s enactment of this unconstitutional rule of
disqualification." 485 Mich at ll90.
information to a party that could be used as a "strategic advantage" in a related case,
however, they fail to explain what this "information" is.
Regardless of justices Corrigan, Young, and Markman’s repeated vague,
inaccurate assertions, the fact remains that the subject of the instant complaint for
superintending control is not dependent on the resolution of the closed ln re Servaas case.
As both l\/lr. l\/luth and l have stated, we did not discuss l\/lr. Fischer or his conduct
relevant to the Servaas matter. The public can obtain any information regarding my
colleagues’ views or opinions with respect to l\/lr. Fischer’s handling of the Servaas
matter simply by viewing this Court’s oral argument in that case and by reading the
opinions issued in In re Servaas. Nothing about the conversation l had with l\/lr. l\/luth
can be considered "secret" information that could be used for a "strategic advantage" in
the instant complaint for superintending control. lf my colleagues have additional
hearsay information that they wish to be made public, they should have voted to take
superintending control and to open all files relevant to this matter.
As of today, june 22, 20l0, the j'l`C has not contacted me about the referral and
has taken no public action. Although l did nothing unethical in discussing a closed case,
and l believe that this Court’s forever-binding "Gag Grder" is unconstitutional and
violates the Code of judicial Conduct, l did not participate in the instant complaint for
superintending control because at the time l became aware that the instant complaint
existed, l believed my meeting with Mr. l\/luth might cause a reasonable person to think
that l would not be impartial if l were to participate in this complaint.z°
10 My meeting with l\/lr. Muth took place before this Court amended l\/ICR 2.003 to
include an appearance of impropriety standard. The first opportunity for this Court to
apply the newly amended MCR 2.003 was in Pellegrino v Ampco Systems Parkz'ng,
Docket No. 1371 l l, when the plaintiff in that case filed a motion for disqualification of
justice l\/larkman based on campaign statements justice Markman had made about the
plaintiffs attorney nine years prior to this Court amending the rule to include the
appearance of impropriety standard. When reviewing and deciding the disqualification
motion filed against justice l\/larkman, l stated that l "will not apply the appearance-of~
impropriety standard retroactively to statements made by a justice concerning a party or a
party’s attorney prior to the iule’s amendment." Icl. While l stated in Pellegrino that l
would not apply the appearance of impropriety standard retroactively to other members
of this Court, in this matter l applied the standard retroactively to myself because since
2003 l have been calling for this Court to establish clear, written, and fair rules for
disqualification and have been addressing the issue of my participation when necessary,
as l did in In re JK, 468 Mich 202; 661 NW2d 216 (2003), Gilbert v Daimler Chrysler,
469 Mich 883; 669 NW2d 265 (2003), Henry v Dow Chem Co, 484 Mich 483; 772
NW2d 301 (2009), In re Servaas, 484 Mich 634; 774 NW2d 46 (2009), and Kyser v
Kasson Twp, 483 Mich 903; 761 NW2d 692 (2009).
10
justices Corrigan, Young, and l\/larkman have repeatedly taken issue with my
stated desire to keep the proceedings of this Court open and transparent. Transparency is
not a new issue, nor is it limited to the Supreme Court. ln fact, transparency has been a
prominent issue in almost every representative government throughout the ages.
As Edmund Burke, a noted 18th Century statesman and philosopher, wrote:
ln all justice, as in all government, the best and surest test of
excellence, is the publicity of its administration; for, whenever there is
secrecy, there is implied injustice.
With regard to "secrecy," Lord Acton said:
Everything secret degenerates, even the administration of justice;
nothing is safe that does not show how it can bear discussion and publicity.
ln addition, President john F. Kennedy stated:
The very word "secrecy" is repugnant in a free and open society; and
we are as a people inherently and historically opposed to secret societies, to
secret oaths, and to secret proceedings. We decided long ago that the
dangers of excessive and unwarranted concealment of pertinent facts far
outweighed the dangers which are cited to justify it.
On the issue of "secrecy," l stand by Edmund Burke, Lord Acton, and President
Kennedy. A justice’s duty to inform the public about what the justice believes the public
needs to know-no more, no less--regarding how this Court conducts the people’s
judicial business is more important than some judges’ desire to make the judiciary a
"secret club."
The l\/lichigan Supreme Court should not be a "secret club." When elected twice
by the people, l did not join one.
CORRIGAN, YOUNG, and MARKMAN, j j . justice WEAVER could simply have
chosen to explain why she is not participating in this case. 'l`hat is the only issue that she
now needs to address. lnstead, she argues once more that she has done nothing improper.
We fulfilled our ethical duties by bringing her conduct to the attention of the judicial
Tenure Commission (JTC) and the Attorney Grievance Commission (AGC), and we
leave it to them to determine whether there has been any misconduct. ln view of justice
WEAVER’s many public statements on this matter, we emphasize the following points:
ll
(l) Everyone understands that a judge should not secretly help one side in a
lawsuit. That is what justice WEAVER appears to have done. She has apparently given
valuable insider Court information to one party, information that the party could use to
strategic advantage in a related case. She did not share this information with the public
or the media; she secretly gave it only to one side.
(2) Our ethical responsibilities required us to refer justice WEAVER’s conduct to
the j TC and the AGC. No rule precludes a complainant from disclosing to the public that
an allegation of judicial misconduct has been brought to the attention of the jTC or the
AGC. l\/loreover, our disclosure at a public administrative conference of justice
WEAVER’s referral came in direct response to her attempt at this same conference,
without any disclosure to the public, to retroactively eliminate a court rule that served as
a legal basis for her referral. Five justices joined in rejecting this attempt.
(3) justice WEAvER’s claim, reflected in media reports, that she initiated
disclosure of her secret conversation is false. Her conduct came to the Court’s attention
on March 25, 20l0, and justice WEAVER only provided a statement attempting to justify
her conduct on April 20, 20l0.
(4) justice WEAVER’S statement fails to disclose the full content of her secret
conversation. She leaves out critical information that she shared with one side that
possessed strategic value in a related case. A confidential document that contains this
information, and that brought justice WEAVER’S conduct to our attention, has been turned
over to the proper authorities. The confidential documents that justice WEAVER has
attached to her statement are by no means the only pertinent documents in her possession.
(5) We have urged justice WEAVER in public sessions of the Court to waive her
right of confidentiality under l\/ICR 9.221(€)(1) so that the public can assess the evidence
and judge the merits of our referral. justice WEAVER has thus far refused to do so. We
remain prepared to waive any right to confidentiality available to us under l\/ICR
9.221(€)(2), and urge justice WEAVER to do the same.
(6) justice WEAVER attempts to distract attention from her refusal to release these
documents by arguing for the release of other court files in In re Servaas and Brady v
AGC. Given that a formal complaint was filed, and a published opinion issued, in
Servaas, that case is already "unsealed," and in Brady, it is up to the respondent in that
case, not any justice, to determine whether it can be "unsealed." See l\/ICR 9.l26(A).
(7) justice WEAVER has maintained for years that she is not bound to honor the
confidentiality of our deliberations, unlike every other justice that has served on this
Court throughout its history. lt is easy for an individual to provide a skewed and
inaccurate account of the facts when that individual understands that others feel bound,
and will abide, by rules of confidentiality, while that individual will not. lt is also easy
l2
under these circumstances for that individual to raise a host of distracting and irrelevant
arguments that have nothing to do with the merits of the case, and to selectively include
and exclude confidential documents, as she does here.
(8) justice WEAVER’S statement that our referral of her constitutes mere "political
maneuvering" disregards that judges have an ethical obligation to refer apparently serious
judicial misconduct to the proper authorities. Code of judicial Conduct, Canon 3(B)(3).
This is necessary in order to uphold the integrity of this Court so that it can fairly and
responsibly serve the people of l\/lichigan. Once the facts in this case become public, the
people can reach their own conclusions as to whether this referral constitutes "political
maneuvering."
(9) The tonnage of documents supplied by justice WEAVER to accompany her
statement should not obscure the simple fact that the single most revealing document of
all-»-that describing the specific conduct by justice WEAVER that serves as the basis for
our referral-has not been supplied.
I, Corbin R. Davis, Clerk of the l\/lichigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
Junezz, 2010 f
Clerk
[Attachment to justice Weaver’s statement
explaining her non-participation.]
M E l\/l O R A N D U M
TO: Corbin Davis, Clerk of Court
ccc The justices and Mike Schmedlen
FROM: justice Elizabeth A. Weaver
DATE: April 20, 20l0
RE; Disclosure statement in Brady et al. v Attorney Grievance
Commission, #140409 - - Complaint for Superintending
Control
lrequest the Clerk of the Court, Corbin Davis, to promptly transmit the
following statement to the parties (Brady et al. and the Attorney Grievance
Commission) in this complaint, and that in the interest of moving this case along,
the parties indicate to this Court whether they will exercise their right of waiver at
their earliest convenience, but no later than 28 days from receipt of this statement.
l also request the Clerk to please inform me as soon as he has transmitted this
statement to the parties:
ln this statement of disclosure to the parties involved in Brady et al.1 v
Attorney Grievance Commissz`on, Docket No. 140409, l hereby raise the issue of
1 Plaintiffs Brady et al. consist of: james S. Brady, jon R. l\/luth, Bruce W.
Neckers, Michael A. Walton, Robert j. Dugan, L. Roland Roegge, William W.
jack jr., H. Rhett Pinsky, john D. 'l`ulley, joseph M. Sweeney, Paul T. Sorensen,
Frederick D. Dilley, janet A. Haynes, Dennis C. Kolenda, Robert L. Lalley jr.,
William S. Farr, and Diann j . Landers. This complaint for superintending control
was filed by a group of Grand Rapids attorneys, including two former State Bar
presidents and two former judges One of the former State Bar presidents is jon
Muth, who was the attorney for 63rd District Court judge Steven Servaas in In re
Servaas, Mich _____; 774 NW2d 46 (2009).
l
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
disqualification with regard to my paiticipationz in this complaint for
superintending control for the reasons disclosed below.
This complaint for superintending control, filed january 20l0, arises from
the Attorney Grievance Commission’s (AGC) dismissal on November l7, 2009 of
the plaintiffs’ june 27, 2008 request for investigation of alleged attorney
misconduct by Paul j. Fischer, Executive Director and General Counsel of the
judicial Tenure Commission (jTC), in the disciplinary proceeding against judge
Steven Servaas.?’ The disciplinary proceeding against judge Servaas was reviewed
and ruled upon by this Court in In re Servaas pursuant to the procedures set forth
in Article 6, section 30 of the l\/lichigan Constitution and the rules set forth by this
Court in MCR 9.200, et seq.
l do not have actual bias or prejudice for or against any party involved in
this complaint or Mr. Fischer. ln fact, l personally know and like Mr. Fischer. l
also personally know and like jon Muth, a plaintiff in this complaint and my
former attorney. ln In re Servaas, Mr. Muth represented judge Servaas, and l
2 l raise the issue of disqualification pursuant to the newly amended MCR
2.003(B), which provides that "[a] party may raise the issue of a judge’s
disqualification by motion or the judge may raise it."
3 On january 20, 2010, the plaintiffs brought this complaint for
superintending control pursuant to MCR 9.l22(A)(2), which provides in pertinent
part that "a party aggrieved by the dismissal may file a complaint in the Supreme
Court."
2
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
disclosed his earlier representation of me to the parties in that case/j l now write
to provide the parties in the instant complaint with the same disclosure.$
4 Please see the attached documents.
5 When the Servaas matter initially came before this Court, l advised the
parties by memo on january 23, 2008 as follows:
Attorney jon Muth has represented me within the past year, for
instance, as my attorney during the public hearing concerning the
majority of four’s adoption of the "Gag Order," Administrative
Order No. 2006-08 [See Administrative Order No. 2006-8 (AO
2006-8), including my dissent, attached hereto].
l note the fact that AO 2006-8, the "Gag Order," was immediately adopted
on an emergency basis by a 4-3 vote in a secret executive session on December 6,
2006. T he secret executive session excluded all Court staff and the "Gag Order"
was adopted at that session without notice to the public and in fact without prior
notice to some of the justices. The "Gag Grder" was never retained pursuant to
this Court’s orders and procedures. Administrative Order (AO) No. 1997-ll
addresses Supreme Court administrative public hearings. Under Section (B)(Z) of
AO 1997-l l, "[u]nless immediate action is required, the adoption or amendment
of rules or administrative orders that will significantly affect the administration of
justice will be preceded by an administrative public hearing . . The "Gag
Order" was adopted without first holding a public administrative hearing on
December 6, 2006.
AO l997-ll(B)(2) further requires that "[i]f no public hearing has been
held before a rule is adopted or amended, the matter will be placed on the agenda
of the next public hearing, at which time the Supreme Court will hear public
comment regarding whether the rule should be retained or amended." (Emphasis
added.) 'l`herefore on january 17, 2007, the "Gag Order" was presented for public
comment at a public administrative hearing. The records of this Court show that
after the january l7, 2007 public administrative hearing, the matter was "passed"
to a later date and thus, no action was taken. There was no vote by this Court to
retain or amend the "Gag Order" and to this day, there has been no vote. ln fact,
the court file was closed without a vote from the Court on February 27, 2007.
Despite the fact that there never was a vote to retain or amend the "Gag Order," it
3
[Attachment to justice Weaver’s statement
explaining her non-participation.]
l write further to clarify the circumstances of and disclose a conversation
that took place between myself and Mr. Muth in Gctober 2009 regarding In re
Servaas. This Court’s opinions in In re Servaas were published for the public on
july 3l, 2009. Gn August 24, 2009 the jTC filed a motion for rehearing or
clarification in this Court. On Septernber ll, 2009 this Court issued an order
denying a motion for rehearing and containing an additional statement by Chief
justice Kelly, which clarified by amendment her original opinion. Therefore, this
Court’s file in In re Servaas closed on September l l, 2009.
ln mid-September 2009, l briefly encountered my friend and former
attorney, Mr. Muth, at the State Bar of Michigan Fellows Reception in Dearborn.
Given that the file in Irz re Servaas had already been closed, l\/lr. l\/luth and l
agreed to meet in Traverse City for a visit over lunch when he would be passing
was published in Michz`gan Rules of Court--State. Without any vote to retain or
amend the "Gag Grder," it has erroneously remained as an allegedly effective
administrative order in our Court rules and on this Court’s website.
l also advised the parties in the Servaas matter as follows:
Although this Court has not established clear, thorough, open and
fair rules for disqualification ofjustices, it is necessary to inform the
Court and the parties of my association with attorney jon Muth. l
have no personal bias for or against Mr. Muth, or any of the parties,
or other attorneys in this matter . . . .
l repeated my disclosure to the parties on March 26, 2008 when the case again
came before this Court. The parties did not object to my participation in the
Servaas matter. Mr. Fischer, representing the j'l`C, specifically waived any
objection to my participation.
4
[Attachment to justice Weaver’s statement
explaining her non-participation.]
through town on October l, 2009. At the time that we agreed to meet, and up until
the time l received this Court’s Commissioner Report in late l\/larch 20l0, l did not
remember that at the l\/larch 4, 2009 In re Servaas oral argument, l\/lr. Fischer
stated that "judge Servaas had his attorneys and a number of others file a
grievance against me with the Attorney Grievance Commission." Mr. Fischer
made this statement in response to questions about whether the j'l`C had
authorized or encouraged him to proceed in the manner that he did while handling
the Servaas matter and making an unannounced visit to confront judge Servaas in
his chambers.é
Because l did not remember Mr. Fischer’s statement at oral argurnent, l did
not realize that a file for a grievance against l\/lr. Fischer may have been opened
and an investigation of his conduct may have been ongoing. Under l\/ICR 9.126,
such files are sealed.7 Therefore, l had no official notice of any file’s existence,
and l had no notice of any file’s status.
6 The record in In re Servaas contains an audio recording of Mr. Fischer’s
unannounced visit to judge Servaas’s chambers on january l6, 2008 and his threat
to "drag [judge Servaas’s] name through the mud" unless he agreed to resign by
9:00 a.m. the following morning. The recording was made, apparently without the
knowledge of Mr. Fischer or judge Servaas, by the State Police Trooper
accompanying Mr. Fischer on the unannounced visit to judge Servaas’s chambers.
The recording was also made public in the media, and is available online at
http://blog.mlive.coni/grpress/2008/04/ by john tunison the.html (last accessed
April 20, 2010).
1 MCR 9.l26--Open Hearings; Confidential Files and Records, provides in
pertinent part:
5
[Attachment to justice Weaver’s statement
explaining her non-participation.]
l\/lr. Muth and l did meet on ()ctober l, 2009 for lunch in Traverse City. He
indicated that he found this Court’s result in In re Servaas strange, convoluted,
and surprisingly close after what he had witnessed during the oral argument. l
responded that his observation was correct and that the vote was originally 6-l in
judge Servaas’s favor. l told him my speculation was that the emphasis and the
direction of some justices’ positions perhaps shifted with recognition that the State
Court Administrator and his office may have had more involvement in the Servaas
matter than merely referring such allegations to the jTC for investigation and
process according to jTC rules.
l reminded Mr. Muth that in my concurrence in In re Servaas, l called for
an investigation of the jTC and any others possibly involved, but that no such
investigation had occurred.g lnstead, this Court published six (6) separate
opinions, resulting in the convoluted decision that prompted a motion for
rehearing or clarification by the j'l`C, required an amendment for clarification to
one justice’s opinion, and led to Mr. Muth’s questions. Mr. l\/luth and l did not
(A) lnvestigations. Except as provided in these rules, investigations
by the administrator or the staff may not be made public. At the
respondent’s option, final disposition of a request for investigation
not resulting in formal charges may be made public.
8 ln my concurring opinion in Irz re Servaas, l urged this Court to "open an
administrative file to investigate how this matter unfolded, including the events
and actions of the judicial Tenure Commission (j'l`C) and/or others responsible
leading up to the jTC’s recommendation of this case to this Court." ______ Mich at
____ (Weaver, j ., concurring). justice l~lathaway signed my concurring opinion.
6
[Attachment to justice Weaver’s statement
explaining her non-participation.]
discuss or mention any request for an AGC investigation of l\/lr. Fischer or the
possibility of a complaint for superintending control, which is the underlying issue
of the instant complaint. We did not discuss any possible allegations of attorney
misconduct by Mr. Fischer, or the instant complaint, in any way.9
Although l\/lr. l\/luth was my attorney at one point in time, he was not my
attorney at any time while In re Servaas was pending, nor when we met in October
2009. To clarify, Mr. Muth is not currently my attorney, and l have not discussed
the instant complaint with him, nor have l had any communication with him since
l learned a few weeks ago in late March 20l0 that the instant complaint had been
filed in this Court. The instant complaint, while related to the Servaas matter, is a
separate and distinct case.
Before l agreed to have lunch with Mr. Muth, l should have remembered
Mr. Fischer’s statement at the In re Servaas oral argument that a grievance was
filed against him by judge Servaas’s attomeys. Had l remembered l would have
9 Of course, in October 2009 l could not have known of the instant
complaint for superintending control because it did not exist given that the AGC
had not yet dismissed the underlying request for investigation of l\/lr. Fischer’s
conduct. ln fact, the AGC did not dismiss the plaintiffs’ 2008 request until
November l7, 2009, by a personal and confidential letter sent to plaintiffs and Mr.
Fischer. The instant complaint for superintending control was not filed in this
Court by Mr. Muth and the other plaintiffs until january 20, 20l0. Because the
AGC proceeding was kept secret from this Court until the filing of the instant
complaint on january 20, 2010, l could not have been aware in October 2009,
when l met with Mr. l\/luth, of the procedural steps leading up to the instant
complaint in this Court. Nevertheless, in retrospect, l should not have met with
Mr. Muth.
7
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
realized that any grievance filed against Mr. Fischer by Mr. Muth could be
pending with the AGC, and l would not and should not have met with Mr. Muth.
But l did not remember and we did meet. 'l`herefore, l must recuse myself from
participating in the instant complaint for superintending control because of the
appearance of bias or improprietyw that my meeting with Mr. Muth may present.“
m The test for determining whether an appearance of impropriety exists as
laid out in Caperton v A T Massey Coczl Co, Inc, 556 US _____; 129 S. Ct. 2252,
2255; 173 L. Ed. 2d 1208 (2009), is "whether the conduct would create in
reasonable minds a perception that the judge’s ability to carry out judicial
responsibilities with integrity, impartiality and competence is impaired." Because
of my meeting with Mr. Muth, it might appear to a reasonable person that l would
not be impartial if l were to participate in this complaint.
“ This Court recently amended MCR 2.003 to include an appearance of
impropriety standard as a ground for disqualification of judges The newly
amended rule set forth in MCR 2.003(C)(l)(b) states: "'l`he judge, based on
objective and reasonable perceptions, has either (i) a serious risk of actual bias
impacting the due process rights of a party as annunciated in Caperton v Massey,
or (ii) has failed to adhere to the appearance of impropriety standard set forth in
Canon 2 of the Michigan Code of Judicial Conduct." (Citation omitted.)
My meeting with Mr. Muth took place before this Court amended MCR
2.003 to include an appearance of impropriety standard. The first opportunity for
this Court to apply the newly amended MCR 2.003 was in Pellegrino v Ampco
Systems Parking, Docket No. 1371 l l, when the plaintiff in that case filed a motion
for disqualification of Justice Marl391 U.S. 563 § l968).
The federal deliberative privilege is narrowly construed and qualified and it does not apply to administrative actions.
Furthermore, that privilege is not intended to protect justices, but rather operates to protect the public confidence in
© 20l0 Thomson Reuters. No Claim to Orig. US Gov. Works.
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
Administrative Order 2006-8 Page 4
the integrity of the judiciary
For such public confidence to be warranted, the Michigan Supreme Court must be orderly and fair and must act with
integrity, professionalism, and respect ln a pertinent case, the federal Fifth Circuit Court of Appeals addressed
whether a judge could be reprimanded for publicly commenting upon the administration of justice as it related to a
case in his court. Scott v Flmvers, 910 FZd 20l (5th Cir 1990). The court cited Pickerz'ng, supra, in recognition that
the deliberative privilege could not prevent the judge from truthfully speaking out regarding matters of legitimate
public concern where the judge's First Amendment rights outweighed the government‘s interest in promoting the
efficient performance of its function
ln light of Pickerz'ng, supra, the Scott court concluded:
Neither in its brief nor at oral argument was the Commission able to explain precisely how Scott's public criticisms
would impede the goals of promoting an efficient and impartial judiciary, and we are unpersuaded that they would
have such a detrimental effect. Instead, we believe that those interests are ill served by casting a cloak of secrecy
around the operations of the courts, and that by bringing to light an alleged unfairness in the judicial system, Scott in
fact furthered the very goals that the Commission wishes to promote [Scott, supra at 2l3.]
The Scott court thus held that the judge could not constitutionally be reprimanded for making public statements crit-
ical of the court.
The federal deliberative privilege as defined in the federal common law does not extend to every utterance and ac-
tion within the Court’s conferences and communications lt does not protect actions taken on non-adjudicative mat-
ters involving administrative responsibilities. lt also does not extend to actions or decisions of the Court, because the
actions and decisions of the Court are not deliberations, they are _fac_t§ that occur at the end of a deliberative period.
Further, any judicial deliberative privilege does not extend to repeated resort to personal slurs, name calling, and
abuses of power, such as threats to exclude a justice from conference discussions, to ban a justice from the Hall of
Justice, or to hold a dissenting justice in contempt Nor does any judicial privilege extend to conduct such as refus-
ing to meet with justices on the work of the Court as the majority of four have now twice done on November 13 and
November 29, 2006. The privilege certainly does not extend to illegal, unethical, and improper conduct. Abuses of
power and grossly unprofessional conduct are entirely unrelated to the substantive, frank, and vigorous debate and
discussion of pending or impending adjudicated cases that a properly exercised judicial privilege should foster.
An absolute judicial deliberative privilege that the majority of four of this Court has wrongly created in AO 2006-08
does not exist in the Michigan Constitution, statutes, case law, court rules, or Code of judicial Conduct, and should
not be allowed to prohibit the publication of any justice’s dissent or concurrence.
Perhaps further attempts to define the scope of the so~called "judicial deliberative privilege" in lvlichigan may be
warranted. However, the privilege cannot effectively be expanded beyond that expressed within the Code of judicial
Conduct through the abrupt, unconstitutional adoption of Administrative Order 2006-08, "gag order."
Most importantly, any judicial deliberative privilege defined in any rule or order must not infringe on a justice‘s con-
stitutional duties and rights.Const 1963, art 6, § 6 requires that
Decisions of the Supreme Court, including all decisions on prerogative writs, shall be in writing and shall contain a
concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. When a
judge dissents in whole or in part he shall give in writing the reasons for his dissent (Emphasis added.)
Any new court rule or administrative order on deliberations that would force a dissenting or concurring justice to not
© 20l0 Thomson Reuters. No Claim to Orig. US Gov. Works.
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
Administrative Order 2006-8 Page 5
include in his dissent or concurrence any or all of his reasons would interfere with the justice’s duty under art 6, § 6.
ln effect, such a rule would allow the majority justices to re~write the dissent or concurrence, silence their opposi-
tion, and would be unconstitutional. AO 2006-08 is such an unconstitutional rule.
lf the majority wanted to attempt to further define the so-called "judicial deliberative privilege" in Michigan, it
should have done so by opening an administrative file on the issue and by inviting public comment before making a
rash decision to adopt a "gag order" without public notice or comment and before implementing the "gag order" by
ordering the suppression of a fellow justice’s dissent. After all, any judicial deliberative privilege must serve the
public‘s interest in maintaining an efficient and impartial judiciary, not the justices' personal interests in concealing
conduct that negatively and seriously affects the integrity and operations of the Court. The public must, therefore,
have a voice in defining the boundaries of any expanded so-called ‘“judicial deliberative privilege" that the majority
of this Court desires to legislate. l have already expressed in dissents on administrative matters (which the majority
has refused to release) that the majority of four has repeatedly abused its authority in the disposition of and closure
of ADM 2003-26, the Disqualification of justices file. They have mischaracterized final actions as straw votes and
failed to correct, approve and publish minutes, and my dissents thereto, for conferences on the Disqualification of
Justices file, ADM 2003~26, dating back almost ten (l()) months to March l, 2006.
Regrettably, under the guise of promoting frank discussion, the majority of four has tried to erect an irnpermeable
shield around their abusive conduct~itself the cause of the breakdown of frank, respectful and collegial discussion on
this Court. No law or rule exists to support this idea, anywhere The majority of four have precipitously and abruptly
adopted AO 2006-08 without notice to fellow justices or the public, and without opportunity for public comment
Over the past year and longer, the majority of four, Chief Justice TAYLOR and justices CORRIGAN, YOUNG, and
MARKMAN, have advanced a policy toward greater secrecy and less accountability l strongly believe that it is past
time to end this trend and to let sunlight into the Michigan Supreme Court. An efficient and impartial judiciary is "ill
served by casting a cloak of secrecy around the operations of the courts.” Scotz, supra.
FO()TNOTES
l. On December 6, 2006, moved by Chief Justice TAYLOR, and seconded by Justices CORRIGAN and YOUNG,
the majority of four adopted AO 2006~08. justices CAVANAGH, WEAVER, and KELLY dissented As adopted
the order states:
The following administrative order, supplemental to the provisions of Administrative Order l997-lO, is effective
immediately
All correspondence, memoranda and discussions regarding cases or controversies are confidential This obligation to
honor confidentiality does not expire when a case is decided. The only exception to this obligation is that a Justice
may disclose any unethical, improper or criminal conduct to the JTC or proper authority.
CAVANAGH, WEAVER and KELLY, JJ., dissent.
Dissenting statements by Weaver and Kelly, J J., to follow.
2. Const 1963, art 6, § 6 requires that:
Decisions of the Supreme Court, including all decisions on prerogative writs, shall be in writing and shall contain a
concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. When a
judge dissents in whole or in part he shall give in writing the reasons for his dissent (Emphasis added.)
© 20l0 Thomson Reuters. No Claim to Orig. US Gov. Works.
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
Administrative Order 2006-8 Page 6
3. Sc.‘c)tt v F[owersi§_l() FZd ?.Ol, 213 (Sth Cir 1990).
4. Note that AO 2006-08 must be placed on the public hearing notice for january l7, 2007, by December 20, 2006,
to conform to the 28 day notice requirement of A() 1997-l l.
5. By requiring that justices give reasons for their decisions in writing, Michigan Constitution Art 6 § 6 gives the
people of Michigan an opportunity to improve justice by providing a window to learn how their Supreme Court is
conducting Michigan's judicial business. Furtherrnore, requiring written decisions from justices provides informa-
tion and guidance for case preparation to future litigants, who may have similar issues to decided cases.
6. On November l3, 2006, Chief Justice TAYLOR and justices CORRIGAN, YOUNG, and MARKMAN voted to
adopt an Internal Operating Procedure (IOP) of the Court, substantively identical to the "gag order" adopted by AO
2006-08. Justices CAVANAGH and KELLY abstained. l voted against the IGP/secret "gag rule.” The majority of
four adopted the IOP/secret "gag rule" in an unannounced executive session from which court staff were excluded
As adopted on Novernber l3, the lOP/secret "gag rule" states:
All memoranda and conference discussions regarding cases or controversies on the CR and opinion agendas are con-
fidential. This obligation to honor confidentiality does not expire when a case is decided. The only exception to this
obligation is that a Justice may disclose any unethical or criminal conduct to the Judicial Tenure Commission or
proper law enforcement authority.
lOPs are unenforceable guidelines adopted by majority vote, without public notice or comment, and can be changed
at any tirne, without public notice or cornment, by a majority vote. (See Supreme Court internal operating proce-
dures at htQ://courts.michigan.gov/supremecourt/ (accessed on December l9, 2006), which provides in a disclaimer
that the IOPs are unenforceable and only require a majority vote to be adopted.) The adoption of this lOP was never
reported in the Supreme Court minutes lt appears that the majority found that the hastily adopted IOP "gag rule"
would not be a proper vehicle to suppress my dissents because my dissents could not be suppressed by color of an
unenforceable court guideline
'l`hus, on Novernber 29, 2006 the majority moved and seconded the adoption of an "emergency" Michigan Court
Rule, another "gag rule," to suppress my dissents and concurrences. The majority discussed but tabled the new pro~
posed emergency court rule that was substantively identical to AO 2006~08 "gag order" that was adopted on De-
cember 6, 2006.
Finally, on December 6, 2006, during an unrelated court conference, without public notice or opportunity for public
comrnent, the majority adopted AO 2006-08, the "gag order." There was no notice given to the justices that an ad-
ministrative order was to be considered, nor was the matter ever on an administrative agenda of this Court. Nonethe-
less, AO 2006-08 was adopted by a 4-3 vote by Chief Justice TAYLOR and justices CORRIGAN, YOUNG, and
MARKMAN. Shortly thereafter, it was moved, seconded, and adopted by a 4-3 vote, by Chief Justice TAYLOR and
justices CORRIGAN, YOUNG, and MARKMAN to suppress my dissent in Grievance Administrator v Fieger,
#127547, motion to stay. Justices CAVANAGH, WEAVER and KELLY dissented. Chief Justice TAYLOR then
ordered the clerk of court, who was present, not to publish my dissent in Fieger.
7. In the order, AO 2006-08 states that AO 2006~08 is "supplernental to the provisions of Adrninistrative Order
1997~10." l note that Administrative Order 1997-10 (AO 1997-10) does not prohibit a justice of the Supreme Court
from disclosing information
By its plain language, AO 1997-10 is inapplicable lt addresses public access to judicial branch administrative in-
formation The order lists types of information that this Court can exempt from disclosure when faced with a request
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
Administrative Order 2006-8 Page 7
from the public for that information Administrative Order 1997-10 is not relevant to and does not prohibit a justice
of this Court from disclosing information, even information that might be considered deliberative, when disclosure
involves matters of legitimate public concern
8. 'l`o abstain is "[t]o refrain from something by one’s own choice." Webster's New World Dictionary, Znd College
Edition (1982).
9. For example, most recently, in Justice CAVANAGH’S concurring statement in In re Halev. 476 Mich l80 201 n
l §20061, he stated:
This Court is currently engaged in a discussion about the proper procedure for judicial disqualifications, as well as
the ethical standards implicated in such a procedure. Further, this Court will soon be asking for public comment and
input to further this discussion in a more open manner
In addition, in his dissent in Grievance Ad)nz`nisz‘rator v Fie,ger, 476 Mich 23l, 327 n l7 (2006), Justice CAVA-
NAGH stated:
Further, while l do not join in the fray between the majority and my colleague Justice WEAVER, l take this oppor-
tunity to note that three alternate proposals, two of which have been crafted by this majority, regarding how this
Court should handle disqualification motions have been languishing in this Court’s conference room for a substantial
period of time. ln the same way l will look forward to the dust settling from the case at bar, l will similarly antic-
ipate this Court’s timely attention to the important matter of disqualification motions. l take my colleagues at their
word that the issue of disqualification will be handled in a prompt manner in the coming months.
Note that justice CAVANAGH'S statements, published in his concurrence in Haley and his dissent in Fieger, were
not objected to by any justice, including the majority of four.
ln addition to these more recent references to matters discussed at judicial conferences, see in In re Mathers 371
Mich 516(19631.
Order Adding Administrative Order No. 2006-8 to the Public l-learing Scheduled on January l7, 2007, [order en-
tered December 20, 2006]
On order of the Coux't, Administrative Order 2006-8 has been added to the public hearing scheduled for january l7,
2007 . Such orcler, having been enacted by the Court as an emergency measure on December 6, 2006 for purposes of
preserving the integrity and confidentiality of the Court‘s deliberative process and to reflect practices that have cha-
racterized the Michigan Supreme Court, and to the best of our knowledge every other appellate court within the
United States, including the United States Supreme Court, since their inception, the Court is particularly interested
in witnesses addressing the following question: Where a Justice violates or threatens to violate Administrative Or-
der 2006-8, what means of enforcement and/or sanction, if any, are properly adopted by the Court?
WEAVER, J. (concurrz`ng and dissenting). l concur only with placing on the Januaxy l7, 2007 public administrative
hearing the adoption of Administrative Order No. 2006-8 (AO 2006-8), adopted by a 4-3 vote on December 6, 2006,
by Chief Justice TAYLOR and justices CORRIGAN, YOUNG, and MARKMAN. l dissent from the remaining lan-
guage in the order.
As stated in my dissent to AO 2006-8 (filed yesterday, December l9, 2006), AO 2006-8 must be placed on the janu-
ary l7, 2007, public administrative hearing because it significantly affects the administration of justice as it can be
used to order the censorship and/or suppression of any justice’s dissents or concurrences, as the majority of four,
Chief Justice TAYLOR and justices CORRIGAN, YOUNG, and MARKMAN, did on December 6, 2006, by order-
© 20l0 Thomson Reuters. No Claim to Orig. US Gov. Works.
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
Administrative Order 2006-8 Page 8
ing the Clerk of the Court to suppress my December 5, 2006, dissent from Grievance Administrator v Fieger, Dock-
et No. 127547 (motion for stay).
Censoring and/or suppressing a justice’s written opinion is contrary to article 6, § 6 of the Michivan Constitution and
the right to free expression as guaranteed by both the Michigan Constitution and the United States Constitution. Fur-
ther, censoring and/or suppressing a justice’s written opinion interferes with a justice’s duty to inform the public of
abuse of power and/or serious mishandling of the people’s judicial business.
The issue that should be of most interest and given most attention at the january l7, 2007, public administrative
hearing is the constitutionality of AO 2006-8.
KELLY, J. (concurring in part and dissenting in part). A bare majority of the justices adopted Adrriinistrative Order
No. 2006~8 on an emergency basis without stating what emergency existed. That same majority now requests public
comment on what sanctions are appropriate for violation of the order. AO 2006~8 contains no sanctions, and the
hearing order lists none that might be appropriate l can recall no other instance in which the Court has sought public
comment without revealing such information.
The language that the majority does present to the public is a rule that it purports to be necessary to preserve the
integrity and confidentiality of the Court’s deliberative process. What interests me most is the community's view on
whether this rule is necessary or even legal. l request comment on whether the rule unnecessarily or even unconstitu-
tionally restricts the right of justices to speak out on matters crucial to the functioning of the judiciary. l am interest-
ed in hearing what good reasons exist to: (l) prevent release of information once a case has been finally decided, (2)
prevent release of information about administrative matters, and (3) limit justices to disclosing certain information to
only the judicial Tenure Commission or a "proper authority," rather than to the public at large. l believe that full and
frank discussion on this important new rule will be had only when these questions are addressed
CAVANAGH, J., concurs with KELLY, J.
Administrative Order 2006-8, Ml R ADMIN Order 2006-8
Current with amendments received through December l, 2009.
Copr. (c) 201 0 Thomson Reuters.
END OF DOCUMENT
© 20l0 Thomson Reuters. No Claim to Orig. US Gov. Works.
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
200 OrTAwA Avr~;wue, N.W., Su»re 1000
GRANo Rm>ios. Ml 49503-2427
TEL Ho. E: (616) 458-1300
l FAC::MH:}E: (6l6) 458»6753
HTPLLC hup://www.dickinsonwright.com
w W”` Dennis C. Kol.euo»x
Dl£olcnda@diclrinsonwright.com
l§l§) 336~\034
April 30, 201 0
Via First Class Mail
Corbin R. Davis, Clerk
Michigan Supreme Court
P.O. Box 30052
Lansing, Ml 48909
Re: Brady, et al v Attorney Grievance Commission
Supreme Court Docl< 306
]OHNSON
Attorneys and Counse!ors
Grand Rapids, MI 49501-0306
`*'.I
||| MZR!TAS LAW F$RMS WORLDW¥DE
616.831.1736
616.988.1736 tax
Muth) @mtl!erjohnson.<:om
Apriz 30, 2010
Justices of the Supreme Court
c/o Mr. Corbin R. Davis, Clerk ofthe Court
Miohigan Hall of Justice
925 W. Gttawa Street
P.O. Box 30052
Lansing, Michigan
Re:
Docket No. 140409
Dear Mr. Davis:
Justice Weaver’s Request to Remit Disqualii"`zoation, Brady, et al. v AGC,
Please see the attached letter addressed to the Michigan Supreme Court, which l
would appreciate you disseminating to the Justices. By separate communication from Dennis C.
Kolenda the petitioners in this case will respond to the Request
to Remit Disqualii`xoation.
Thml< you for your assistanee.
.TRMzkll
Enolosure
Very truly yours,
M;LLER JoHN scm
,FW¢¢»/L_
Jon R. Muth
By
[Attachment to Justice Weaver’s statement
explaining her non-participation.]
§
§ Calcler Plaze Builoing jon R, M\n'a
250 MOFTF`U€ AV€FIUE NW Af’cgrney af Law
Suite 800
® P.O. Box 306 516,831.1736
Grand Raplds, Ml 49501~0306 515_§83_1735 fax
Af'CC>m€>/S and Counselors Muth]@miflerjohnson.com
HMERH’AS l.AW F\RMS WURLDW\DE
Apr~ii 30, 2010
justices of the Supreme Court
c/o Mr. Corbin R. Davis, Clerk of the Court
Michigan Hall of Justice
925 W. Ottawa Street
P.O. Box 30052
Lansing, Michigan
Re: Justice Weaver’s Request to Remit Disqualitication, Brady, et af. v AGC,
Docl< 306 616.831.1736
Grand Rapid$, MI 49501~0306 515_983_1736 fax
Att°""ey$ and C°”"‘Se’°"$ Muth.'l@millerjohnson.com
"..I'
lll MERlTAS LAW F|RMS WDRLDW\DE
June 8, 20l0
Corbin R. Davis, Clerk of the Court
Michigan Supreme Court
Michigan Hall of Justice
P.O. Box 30052
Lansing, Ml 48909
Re: Brady, et al. v AGC
( § Supreme Court DocketNo.140409
Dear Mr. Davis:
Please communicate this responsive correspondence to the .lustices regarding the
above-captioned matter.
I have received the letter of June l, 20l0 from the Attorney Grievance
Commission. Mr. McGlynn is correct that l received a copy of Mr. Fischer’s answer on August
20, 2009 and that l filed a response on behalf of the complainants on September ll, 2009. That
portion of my earlier letter wherein l state "I had not at that date seen any answer to the
grievance from the Respondent" is inaccurate l trusted my memory and not my file and for that
inaccuracy l apologize
'l`hat error, however, does not in any way impact the salient issues in the current
debate. Mr. Fischer’s answer to the complaint was lacking in any revelatory information that
was not already known and was so non-responsive that it caused the complainants’ to make note
of his failure to adhere to the applicable rules in their response of September l. The grievance
was, as l indicated, under investigation on October l and the AGC had given me no indication of
the likely outcome Regardless of the state of my knowledge of the grievance process, it was not
a subject l discussed with Justice Weaver.
Since this letter addresses errors in communication, I would be remiss if l did not
bring to the Court’s attention certain inaccurate information that has been reported in the press
and attributed to members of the Court. 1 will give but three examples
RECEl\/ED
JuN 9 2010
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