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Petition for a Writ of Certiorari to the Michigan Supreme Court ------♦ ------PETITION for a WRIT of CERTIORARI ------♦

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Petition for a Writ of Certiorari to the Michigan Supreme Court ------♦ ------PETITION for a WRIT of CERTIORARI ------♦ No. _________ ================================================================ In The Supreme Court of the United States --------------------------------- ♦ --------------------------------- GEOFFREY N. FIEGER, Petitioner, v. MICHIGAN GRIEVANCE ADMINISTRATOR, Respondent. --------------------------------- ♦ --------------------------------- On Petition For A Writ Of Certiorari To The Michigan Supreme Court --------------------------------- ♦ --------------------------------- PETITION FOR A WRIT OF CERTIORARI --------------------------------- ♦ --------------------------------- DAVID A. MORAN BRIDGET M. MCCORMACK Counsel of Record UNIVERSITY OF MICHIGAN WAYNE STATE UNIVERSITY LAW SCHOOL LAW SCHOOL 801 Monroe Street, # 361 LR 471 W. Palmer Street Ann Arbor, Michigan 48109 Detroit, Michigan 48202 (734) 763-4319 (313) 577-4829 KENNETH M. MOGILL MOGILL POSNER & COHEN 27 E. Flint Street, Floor 2 Lake Orion, Michigan 48362 (248) 814-9470 Attorneys for Petitioner Dated: October 2006 ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 i QUESTION PRESENTED Does an attorney have a First Amendment right to pub- licly express non-defamatory personal criticism of a judge when that criticism could not affect any pending trial, as the Ninth Circuit and the supreme courts of Colorado, Oklahoma, and Tennessee have held, or is an attorney subject to discipline for such criticism, as the Seventh Circuit and the supreme courts of Michigan, Mississippi, and Missouri have held? ii TABLE OF CONTENTS Page Question Presented .................................................... i Table of Authorities .................................................... iii Reference to Opinions Below...................................... 1 Statement of Jurisdiction........................................... 1 Constitutional Provision and Rules Involved ............ 1 Statement ................................................................... 2 Reason for Granting the Writ..................................... 6 I. At Least Six State Supreme Courts and Two Federal Circuits Have Split Over Whether the First Amendment Protects Attorneys From Discipline for Public, Non-Defamatory Statements Criticizing Judges ........................ 6 Conclusion .................................................................. 14 Appendix Grievance Administrator v. Fieger, 719 N.W.2d 123 (Mich. 2006) ............................................................ 1a Grievance Administrator v. Fieger, (Mich. Att. Disc. Bd. Nov. 8, 2004) .....................................................152a Stipulation for Consent Order of Discipline, Griev- ance Administrator v. Fieger (Oct. 15, 2003)..........217a iii TABLE OF AUTHORITIES Page CASES: Badalamenti v. William Beaumont Hosp., 602 N.W.2d 854 (Mich. Ct. App. 1999)............................... 2, 4 Bridges v. California, 314 U.S. 252 (1941)............ 10, 11, 13 Cohen v. California, 403 U.S. 15 (1971)............................ 13 Disciplinary Counsel v. Gardner, 793 N.E.2d 425 (Ohio 2003)........................................................................ 8 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) .................................................................... 4, 6, 7, 8 Grievance Administrator v. Fieger, 719 N.W.2d 123 (Mich. 2006) ...................................................................... 1 Hustler Magazine v. Falwell, 485 U.S. 46 (1988) ............. 13 In re Chmura, 608 N.W.2d 31 (Mich. 2000)...................... 12 In re Green, 11 P.3d 1078 (Colo. 2000)................................ 7 In re Sawyer, 360 U.S. 622 (1959) ....................................... 6 Matter of Palmisano, 70 F.3d 483 (7th Cir. 1995) .... 8, 9, 10 Matter of Westfall, 808 S.W.2d 829 (Mo. 1991)............. 9, 10 Mississippi Bar v. Lumumba, 912 So.2d 871 (Miss. 2005)............................................................................ 9, 10 Oklahoma Bar Ass’n v. Porter, 766 P.2d 958 (Okla. 1988).............................................................................. 7, 8 Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116 (Tenn. 1989) .............................................. 7, 8 Republican Party of Minnesota v. White, 536 U.S. 765 (2002) ....................................................................... 12 Roth v. United States, 354 U.S. 476 (1957)......................... 5 iv TABLE OF AUTHORITIES – Continued Page Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995) ............................................. 7, 8 Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918) ....................................................................... 11 RULES AND CONSTITUTIONAL PROVISION: Michigan Rules of Professional Conduct 3.5(c)........... 1, 3, 4 Michigan Rules of Professional Conduct 3.6..................... 13 Michigan Rules of Professional Conduct 6.5(a) .......... 1, 3, 4 Michigan Rules of Professional Conduct 8.2(a) ................ 13 U.S. Const., Amend. I......................................... 1, 7, 8, 9, 13 STATUTES: 28 U.S.C. § 1257 ................................................................... 1 1 REFERENCE TO DECISIONS BELOW The July 31, 2006, decision of the Michigan Supreme Court is published as Grievance Administrator v. Fieger, 719 N.W.2d 123 (Mich. 2006). The November 8, 2004, decision of the Michigan Attorney Discipline Board is unpublished. Both of these decisions are reproduced in the appendix to this petition. --------------------------------- ♦ --------------------------------- STATEMENT OF JURISDICTION Petitioner seeks review of the July 31, 2006, decision of the Michigan Supreme Court. This Court has jurisdic- tion pursuant to 28 U.S.C. § 1257. --------------------------------- ♦ --------------------------------- CONSTITUTIONAL PROVISION AND RULES INVOLVED U.S. Const., Amend. I: Congress shall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Michigan Rules of Professional Conduct 3.5(c) A lawyer shall not engage in undignified or discourte- ous conduct toward the tribunal. Michigan Rules of Professional Conduct 6.5(a) A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take 2 particular care to avoid treating such a person discourte- ously or disrespectfully because of the person’s race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and nonlawyer assistants to provide such courteous and respectful treatment. --------------------------------- ♦ --------------------------------- STATEMENT Petitioner Geoffrey N. Fieger, a nationally-known attorney, was the Democratic Party nominee for governor of Michigan in 1998. After his defeat, Petitioner continued practicing law while simultaneously hosting a political talk show, “Fieger Time,” on a radio station in the Detroit area. This case presents the question of whether Peti- tioner’s First Amendment right to free speech was violated when he was subjected to professional discipline for criticizing judges on that talk show. On August 20, 1999, a three-judge panel of the Michi- gan Court of Appeals overturned a $15,000,000 verdict that Petitioner had obtained for a client in a medical malpractice action. Badalamenti v. William Beaumont Hosp., 602 N.W.2d 854 (Mich. Ct. App. 1999). After holding that the defendants were entitled to judgment notwith- standing the verdict because there was insufficient evi- dence of malpractice, id. at 857-860, the panel proceeded to criticize Petitioner’s conduct during the trial. Id. at 860- 862. Three days later, Petitioner responded on “Fieger Time” by delivering a personal attack against the three judges who had criticized him: “Hey, Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it 3 on me, I declare it on you. Kiss my ass, too.” App. 3. Petitioner remarked about his client, “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.” Id. Two days later on “Fieger Time,” Petitioner referred to the panel as “three jackass Court of Appeals judges.” App. 3. When another member of Petitioner’s broadcast team used the word “innuendo,” Petitioner remarked, “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.” Id. Finally, Petitioner added, “They say under their name, Court of Appeals Judge, so anybody that votes for them, they’ve changed their name from, you know, Adolf Hitler and Goebbels, and . Eva Braun.” App. 3-4. Nearly two years after Petitioner’s remarks, Respon- dent filed a complaint alleging that Petitioner’s talk show remarks violated, inter alia, Michigan Rules of Profes- sional Conduct (MRPC) 3.5(c) (“A lawyer shall not engage in undignified or discourteous conduct toward the tribu- nal”) and MRPC 6.5(a) (“A lawyer shall treat with courtesy and respect all persons involved in the legal process”). App. 4. On October 16, 2003, Petitioner and Respondent stipulated to a Consent Order of Discipline in which Petitioner pleaded no contest to violating MRPC 3.5(c) and 6.5(a) while specifically preserving his right to appeal the
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