Fieger v. Michigan Supreme Court

MERRITT, Circuit Judge,

dissenting.

Rule 3.5(c) of the Michigan Rules of Professional Conduct provides that a lawyer shall not “engage in undignified or discourteous conduct toward the tribunal.” Rule 6.5(a) provides that “a lawyer shall treat with courtesy and respect all persons involved in the legal process.” No other jurisdiction places such potentially sweeping restrictions on attorney speech.1 Plaintiffs Geoffrey Fieger and Richard Steinberg brought suit under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), seeking a declaration that these “courtesy and civility” provisions are unconstitutionally vague and overbroad. The district court concluded that the suit presented an actual controversy that would be appropriately resolved by issuing declaratory relief. The majority now reverses both of those decisions. Because I believe that the requirements for standing under the Declaratory Judgment Act require a different result, I respectfully dissent.

The majority first errs by falsely claiming that these Rules are narrow and that the Michigan Supreme Court has given the Rules an even narrower construction. The majority opinion also completely fails to understand that the recent case of MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007), clearly establishes the proposition that, in free-speech cases brought under the Declaratory Judgment Act, credible threats of governmental suppression create standing for individuals who face a realistic danger of prosecution.

I. The Challenged Rules

I begin with a brief discussion of the Rules in question, since their reach is relevant to plaintiffs’ standing to challenge them. The majority repeatedly emphasizes the importance of “the narrow construction” given to the challenged Rules by the Michigan Supreme Court. This “narrow construction” purportedly undermines plaintiffs’ ability to establish standing because plaintiffs have not alleged that they “intend to make vulgar, crude, or personally abusive remarks about participants in pending cases.” Supra at 13; see also id. (noting that “the narrow construction placed on” the Rules is the backdrop against which the standing analysis is undertaken).

I find it impossible to read the Michigan Supreme Court’s construction of the Rules as “narrow” in any significant way. The majority appears to read the opinion to say that the Rules apply only to vulgar, crude, or personally abusive remarks. If that were so, this would be a different case. But the Michigan Supreme Court merely said that the Rules clearly apply to such remarks, without suggesting that they do not apply elsewhere. In its discussion of *976vagueness, the Court avoided clarifying the Rules’ potential reach, noting that Fieger’s vagueness challenge “cannot be successfully advanced here because there is no question that even the most casual reading of these rules would put a person clearly on notice that the kind of language used by Mr. Fieger would violate MRPC 3.5(c) and MRPC 6.5(a).” Grievance Adm’r v. Fieger, 476 Mich. 231, 719 N.W.2d 123, 139 (2006). In addition to missing the very point of a vagueness challenge, this passage is indicative of the lack of any narrowing construction in the opinion — the Court says that the Rules clearly apply to certain speech, without suggesting any other speech to which they do not apply. To be sure, the Court emphasizes that the Rules do not prohibit all criticism of judges, instead governing only “the form and manner of such criticism.” Id. at 144. But that merely raises the question of what forms and manners of criticism are considered “undignified,” “discourteous,” or lacking in “respect.” Comparing judges to Hitler and Goebbels evidently falls on the wrong side of the line. But would it be permissible to vary the “form and manner” of criticism, and say that the judges had “behaved dictatorially”? Saying that a judge is a “jackass” appears to be impermissible (despite the fact that the word is a non-vulgar name for a donkey). But would it be permissible to vary the “form and manner” and say that he is a “stubborn idiot,” a “right-wing radical,” a “doctrinaire ideologue,” or “driven by party politics”? Or, for that matter, to say that he is an incompetent jurist whose presence on the bench is a disgrace? Nothing in the opinion suggests where the line between permissible and impermissible form might lie. In sum, the Michigan Supreme Court says that lawyers are free to criticize judges, but may only do so in a manner that shows courtesy and respect. The vagueness — and potential reach — of this requirement hardly needs further elaboration.

Not only did the Michigan Supreme Court fail to give the Rules a meaningful limiting construction, it actually expanded the reach of the Rules in several key respects. First, it held that the phrase “all persons involved in the legal process,” as used in Rule 6.5(a), includes judges, who therefore must be “treat[ed] with courtesy and respect.” If there was any meaningful difference between a prohibition against “undignified or discourteous conduct,” on the one hand (which arguably left some leeway for vigorous criticism), and an affirmative duty to treat judges with “courtesy and respect,” on the other (which seemingly leaves no such room for criticism), that difference has been made moot, since both provisions now govern attorney conduct toward judges. Second, the Court construed the phrase “toward the tribunal,” as used in Rule 3.5(c), to include any statement made “with respect to” the tribunal. See id. at 137. This expansive reading of the Rule, which had never previously been applied to an attorney’s public comments, see Grievance Adm’r v. Fieger, ADB # 01-055-GA (2004), means that any public criticism of judges is now potentially subject to disciplinary action. Finally, in its discussion of the Rules’ inevitably “flexible” enforcement standards, see Grievance Adm’r, 719 N.W.2d at 139, the Court notes that the State’s interest in limiting attorney speech is greater when cases are pending. From there, it adopts a technical definition of the word “pending” to conclude that the State has a strong interest in vigorous enforcement even after an appellate court has rendered its judgment, so long as the “time for filing an application for leave to appeal to the Supreme Court,” which is now twenty-one days, has not expired. Id. at 135-36. Thus, an attorney’s criticism of a recently rendered appellate court decision is treated identically *977to an attorney’s criticism of the court in an ongoing jury trial.2 This reasoning takes us far afield of the purpose of the rule regarding pending cases, which is concerned with preventing unfairness to the parties and disruption of the legal system. See, e.g., Terri R. Day, Speak No Evil: Legal Ethics v. The First Amendment, 32 J. LEGAL PROF. 161 (2008) (explaining that the “Supreme Court has held that attorneys’ First Amendment rights must be balanced against litigants’ right to fair and impartial adjudications”).3

In sum, the Michigan Supreme Court’s construction of the challenged Rules cannot accurately be described as “narrow.” The Court not only failed to limit or clarify the language in any meaningful way, it held that the Rules apply in ways that they had never done before, paving the way for more expansive enforcement in the future. It is against this backdrop that plaintiffs’ standing should be evaluated.4

II. Standing

Standing to bring suit under the Declaratory Judgment Act is subject to different requirements than standing to sue for damages or an injunction. The majority blurs these requirements by demanding that plaintiffs demonstrate a pattern of disciplinary actions so consistent that we can infer inevitable and imminent future harm. While this standard might be appropriate to a suit for injunctive relief, it is inappropriate to a suit for declaratory relief.

In MedImmune, Inc. v. Genentech, Inc., the Supreme Court explained that, when analyzing standing in declaratory-judgment actions, “ ‘the question in each case is whether the facts alleged, under all circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” 549 U.S. at 127, 127 S.Ct. 764 (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)). There seems to me to be little question that the free-speech controversy here (which requires a straightforward assessment of the Rules’ facial validity) is substantial, definite, and concrete, and that the parties have adverse legal interests. The only point of debate, then, concerns whether the controversy is of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. It bears emphasis that this test does not require plaintiffs to violate the law and await actual prosecution: “[Wjhere threatened action *978by government is 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.” Id. at 772.5 A controversy possesses sufficient immediacy and reality if a plaintiff faces “a realistic danger” or “credible threat” of the law being enforced against him. See Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). This standard is met “when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative” and a plaintiff has asserted that he intends to engage in behavior that appears to be prohibited by the text of a vague law. Id. at 303, 99 S.Ct. 2301. This is true even where the challenged law has never been applied to the plaintiff and may not be in the future. Id. at 302, 99 S.Ct. 2301. Therefore, a plaintiff has standing to seek declaratory relief when he has alleged an intention to engage in behavior that, if undertaken, would raise a realistic danger of government prosecution.

Fieger has easily satisfied this requirement and thus has standing.6 He has alleged that he intends to continue being an outspoken critic of the Michigan judiciary. If history is any guide, much of that future criticism could very plausibly be described as “discourteous,” putting him in realistic danger of prosecution. The fact that disciplinary action has “only” been brought against him twice does not undermine standing in this context, as the majority contends; it buttresses it.

It is also worth noting that the majority’s apparent demand for detailed allegations about the sorts of decisions that Fieger will criticize and the specific language that he will use is particularly inappropriate in a suit for a declaration concerning the facial validity of the Rules. If plaintiffs had sought a declaration that certain specific actions could not be punished under the Rules — that is, “a pre-application, as-applied challenge,” Adult Video Ass’n v. U.S. Dep’t of Justice, 71 F.3d 563, 567 (6th Cir.1995) (emphasis omitted) — it would be appropriate to require that they allege the behavior with a high degree of specificity and demonstrate the likelihood that they will undertake that behavior in the future. But where they seek a declaration that the law, on its face, *979is unconstitutionally vague and overbroad, what is the point of having plaintiffs’ standing turn on the specificity of their planned conduct? A facial challenge to the Rules will be resolved by reference to the text of the Rules and any limiting constructions Michigan courts have given them; the specific conduct that gave rise to the facial challenge is of little relevance and should not be determinative of the existence of a case or controversy.

Finally, I do not believe that my colleagues have given sufficient weight to the District Court’s conclusions about the existence of a controversy and the appropriateness of issuing declaratory relief. “[T]he existence of an actual controversy and the adequacy of declaratory relief to resolve it are issues often presenting particular difficulty in declaratory judgment actions, and it is to these issues that judicial discretion in such actions is primarily directed.” Perez v. Ledesma, 401 U.S. 82, 123-24, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part and dissenting in part). As the Court recently reiterated, it is “more consistent with the [Declaratory Judgment Act] ... to vest district courts with discretion in the first instance, because facts bearing on the usefulness of the declaratory judgment remedy, and the fitness of the case for resolution, are peculiarly within their grasp.” Medlmmune, 549 U.S. at 136, 127 S.Ct. 764 (quotations omitted). The standing question here is not close or subject to reasonable debate among lawyers who understand the law; but if it were, we should give a strong version of deference to the District Court’s conclusion that an actual controversy fit for judicial resolution exists.

. The old version of the American Bar Association’s Model Rule of Professional Conduct 3.5 prohibited a lawyer "appearing in his professional capacity before a tribunal" from "engag[ing] in undignified or discourteous conduct which is degrading to a tribunal.” The ABA subsequently changed this Rule to provide that a lawyer shall not "engage in conduct intended to disrupt a tribunal.” Of the forty-five jurisdictions that base their rules on the ABA Rules, only three others besides Michigan retain a reference to "undignified or discourteous conduct,” and each of those three includes a further requirement that the conduct be "degrading” or "disrupting” to the tribunal. See Grievance Adm’r v. Fieger, ADB # 01-055-GA at *6-13 (2004) (surveying other jurisdictions and concluding that Michigan's Rule 3.5(c) “appears to be unique” in its breadth).

. The Court does not even stop there. It says that the Rules apply to all pending cases (giving that term an expansive reading, as noted), but declines to say that Rules do not apply to non-pending cases. See Grievance Adm'r, 719 N.W.2d at 136 ("It is also unnecessary for us to decide, and we do not decide here, the limits our civility rules place on lawyers after a case has been completed.”).

. As noted, supra note 1, it is instructive to compare Michigan Rule of Professional Conduct 3.5, prohibiting "undignified or discourteous conduct toward the tribunal,” with the American Bar Association's Model Rule of Professional Conduct 3.5, which prohibits "conduct intended to disrupt a tribunal.” As commentators have noted, "[i]f a lawyer takes action outside a courtroom setting, it is virtually impossible to 'disrupt' a tribunal." Geoffrey C. Hazard, Jr., et al., the Law of Lawyering § 31.6, 31-8 (3d ed.2004). Thus, Michigan appears to be unique in saying that its rules concerning attorney speech towards a tribunal apply outside of the courtroom.

.I also note in passing that this case presents an unusual concentration of power in one branch of government: the Michigan Supreme Court in effect makes, enforces, and interprets the laws relating to the criticism of its members. Basic separation-of-powers principles and common sense should cause us to approach such laws with a healthy degree of skepticism.

. The Court in MedImmune drew on Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), a case in which the plaintiff did not have to "proceed to distribute handbills and risk actual prosecution before he could seek a declaratory judgment regarding the constitutionality of a state statute prohibiting such distribution,” explaining:

As then-Justice Rehnquist put it in his concurrence, "the declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity.” [Steffel, 415 U.S.] at 480[, 94 S.Ct. 1209], In each of these cases, the plaintiff had eliminated the imminent threat of harm by simply not doing what he claimed the right to do.... That did not preclude subject-matter jurisdiction because the threat-eliminating behavior was effectively coerced. See Terrace [v. Thompson, 263 U.S. 197, 215-16, 44 S.Ct. 15, 68 L.Ed. 255 (1923)]; Steffel, [415 U.S.] at 459[, 94 S.Ct. 1209], The dilemma posed by that coercion — putting the challenger to the choice between abandoning his rights or risking prosecution — is "a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.” Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

MedImmune, 549 U.S. at 129, 127 S.Ct. 764.

. Because Fieger, in my view, has standing, it is unnecessary to address whether Steinberg also has standing.