Brady v. Attorney Grievance Com'n

486 Mich. 997

793 N.W.2d 398

James S. BRADY, Jon R. Muth, Bruce W. Neckers, Michael A. Walton, Robert J. Dugan, L. Roland Roegge, William W. Jack, 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.ATTORNEY GRIEVANCE COMMISSION, Defendant.

Docket No. 140409.

Supreme Court of Michigan.

June 23, 2010.

Order

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.

HATHAWAY, J. (dissenting).

I would grant the complaint for superintending control and, in lieu of granting the requested relief, I would direct the Attorney Grievance Commission 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. I would further direct the appointed counsel to present findings and conclusions to the Attorney Grievance Commission, 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.

I am not participating in this complaint for superintending control because the circumstances that I describe below could have raised an appearance of impropriety had I participated in the case.¹ I 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 isattached.) As the circumstances described in the letter establish, I have done nothing wrong and nothing unethical. Nevertheless, I followed my long-standing practice for disqualification that "when in doubt, get out."

This complaint for superintending control, filed January 2010, arose from the Attorney Grievance Commission's (AGC) dismissal on November 17, 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 Mich. 634, 774 N.W.2d 46 (2009).

In In re Servaas, attorney Jon Muth represented Judge Servaas. This Court's decision and opinions in In re Servaas were published for the public on July 31, 2009. On August 24, 2009 the JTC filed a motion for rehearing or clarification in this Court. On September 11, 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 11,2009.

In mid-September 2009, I briefly encountered my friend and former attorney, Mr. Muth, at the State Bar of Michigan Fellows reception in Dearborn. Given that the file in In re Servaas had already been closed, Mr. Muth and I agreed to meet in Traverse City for a visit over lunch when he would be passing through town on October 1, 2009. At the time that we agreed to meet, and up until the time I received this Court's Commissioner Report in late March 2010, I had no reason to recall that at the March 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." Mr. 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

I 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 beenongoing. Under MCR 9.126, such files are sealed.⁴ I had no official notice of any file's existence, and I had no notice of any file's status.

Mr. Muth and I did meet on October 1, 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.⁵ I responded that his observation was correctand that the vote was originally 6-1 in Judge Servaas's favor. I 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 JTC rules.

I reminded Mr. Muth that in my concurrence in In re Servaas,⁶ I called for an investigation of the JTC and any others possibly involved, but that no such investigation had occurred. Instead, this Court published six (6) separate opinions,⁷ resulting in the convoluted decision that prompted a motion for rehearing or clarification by the JTC, required an amendment for clarification to one justice's opinion, and led to Mr. Muth's questions. Mr. Muth and I 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 Mr. Fischer, or the instant complaint, in any way.⁸

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 October 2009. To clarify, Mr. Muth is not currently my attorney,and I have not discussed the instant complaint with him, nor have I had any communication with him since I learned in late March 2010 that the instant complaint had been filed in this Court.⁹ The instant complaint, while related to the Servaas matter, is a separate and distinct case.

Had I realized that any grievance filed against Mr. Fischer by Mr. Muth could be pending with the AGC, I would not have met with Mr. Muth. Therefore, while there was nothing unethical about my conversation with Mr. Muth, I informed the parties that I 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. Muth may have presented.

On April 20, 2010, I 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, 2010, I received notice from attorney-plaintiff Dennis Kolenda on behalf of the plaintiffs that the 17 plaintiffs waived my disqualification. In his letter, Mr. Kolenda stated "[t]here is ... no basis for any objection to Justice Weaver's continued participation." In addition, by letter dated April 30, from attorney-plaintiff Jon Muth, Mr. Muth stated that there is no basis for my disqualification.¹⁰ Mr. Muth 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." Having received no response to my disqualification statement from the AGC, I did not participate in this complaint for superintending control. ¹¹

At the May 12, 2010 public administrative conference, Justices Corrigan, Young and Markman admitted publicly that on April 28, 2010,they had referred me to the JTC regarding this case.¹² Justices Corrigan, Young and Markman sent the JTC a copy of my April 20, 2010 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 Markman state that I have intentionally left this document out of my statement. However, the reason that I 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.¹³

I 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 Markman cast 3 of the 5 votes to deny relief on the complaint for superintending control and effectively keep the AGC file sealed,¹⁴ it is ironic and disingenuous that they complain that I have not supplied a document that is contained within that sealed file. My 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 Markman not only publicly accused me, but judged me as guilty. The judgments of Justices Corrigan, Young and Markman are apparent when viewing this Court's May 12, 2010 public administrative conference. Their judgments clearly go beyond "bringing this matter tothe attention" of the JTC and the AGC. To view the May 12, 2010 public administrative conference, please see my personally-funded website: www. justiceweaver. com. ¹⁵

As the attached correspondence shows, I did not violate any ethical rules or do anything warranting JTC consideration by discussing In re Servaas with Mr. Muth after that case was closed. The only possible "rule" I could have violated was the "Gag Order," AO 2006-8,¹⁶ which I...