476 Mich. 231, 719 N.W.2d 123 (Mich. 2006); 553 F.3d 955 (6th Cir 2009)
Weaver declined to participate and failed to state that any of the Fieger accusations she now adopts compelled our disqualification. See Grievance Administrator v Fieger, 475 Mich 1211 (2006). Nothing has changed since June 1, 2006.
It is deeply troubling that a member of this Court would undertake so gratuitously, and so falsely, to impugn her colleagues. This is a sad day in this Court’s history, for Justice Weaver inflicts damage not only on her colleagues, but also on this Court as an institution. However, we do not intend to be deterred by false accusations from carrying out our constitutional duty to hear cases, including those in which Mr. Fieger is involved, and to decide these cases fairly and evenhandedly, as we have always done in the past. In particular, we invite public scrutiny of this Court’s record in cases in which Mr. Fieger, personally, and his clients have been involved.
In making her charges of “bias and prejudice” Justice Weaver essentially adopts verbatim arguments made by Mr. Fieger in various disqualification motions that each of us has already considered and rejected. However, in light of Justice Weaver’s unwarranted characterization of our positions, we explain here why we did so.
Justice Weaver first focuses on statements made during the campaigns of three of us in 2000. (It is puzzling that Justice Weaver has never before cited these statements as a basis for our disqualification, given that Mr. Fieger has repeatedly cited the same statements in earlier disqualification motions that he has brought since 2000.) None of these statements properly serves as a basis for disqualifying any of us; indeed, such statements merely reflect the reality of Michigan’s constitutionally mandated system of democratically electing its judiciary.
Under our Constitution, candidates for the Supreme Court are nominated at party conventions and run for election. Const 1963, art 6, § 2. In 1998, Mr. Fieger ran for Governor of Michigan on the Democrat ticket. As such, in 2000, he was the most visible member and the titular head of the Michigan Democrat Party, which was then channeling millions of dollars in opposition to our election campaigns. Mr. Fieger was outspoken, particularly about his views of our state's legal and judicial systems, and his statements received a great deal of exposure through both the media and opposition campaign communications. In addition, Mr. Fieger himself contributed substantial amounts of money in opposition to our campaigns while also being highly vocal in his political opposition.
These were Mr. Fieger’s prerogatives. Yet under Justice Weaver’s analysis, neither we nor our supporters could exercise our own prerogatives to ever mention these facts in our campaigns. That is, despite our individual judgments that references by our campaigns to Mr. Fieger’s opposition would assist the public in understanding our judicial positions, and would effectively contrast these positions with those of the candidates running against us, Justice Weaver would preclude judicial candidates from communicating truthful statements to the public. In her view, statements concerning the identity of political opposition could never be uttered lest a judicial candidate be forever precluded from hearing cases involving such persons. The public would not benefit by having less, rather than more, information about a judicial candidate. A highly visible and outspoken public figure, who is an integral part of the political opposition to a judicial candidate, cannot be insulated from mention, or even criticism, in a judicial campaign because he also happens to be a lawyer. Yet this follows if every such mention, or criticism, of political opposition requires judicial disqualification. Even more troubling, Justice Weaver’s approach to disqualification would sharply skew the campaign process. Her approach would silence judicial candidates criticized by those with regular contact with the legal system—e.g., lawyers—while permitting forceful responses from judicial candidates whose opposition comes from different quarters. Justice Weaver would tie the hands of some—but only some—judicial candidates in defining themselves and in characterizing their judicial philosophies, not only to the detriment of those candidates, but to the detriment of the public's ability to intelligently distinguish between candidates for judicial office.
In perhaps her most troubling premise, Justice Weaver suggests that a judicial candidate is biased with regard to individuals or organizations identified as opposing his or her candidacy. Yet Justice Weaver fails to recognize that the
reverse would then also be true. Would not a judicial candidate who has received the public support or endorsement of an individual or organization be, by the same token, “biased or prejudiced” in favor of those parties? “Bias or prejudice” is not a one-way street. “Bias or prejudice” can be shown either in favor of or in opposition to an individual or organization. Judges in this state (including each of the justices of this Court) who have run for election have sought, and garnered, support from individuals and organizations, both in the form of financial assistance and endorsements. Examples of those who have offered support include labor unions, businesses and business organizations, lawyer organizations, trade associations, interest groups, prominent citizens, political leaders, and the like. Moreover, judges in this state (including, again, each of the justices on this Court) have routinely communicated such support through campaign advertising, public speeches, newspaper interviews, and fund-raising efforts.1
Indeed, to apply her own rule to herself, Justice Weaver would certainly be precluded from participation in the instant case in light of the fact that she received financial contributions—the most compelling form of all endorsements—from Mr. Fieger in her most recent campaign.2
In short, Justice Weaver’s position has far-reaching implications for judicial selection in Michigan, which the people of this state, through their Constitution, have placed into the political process. None could contest—and tellingly, Justice Weaver herself does not contend—that any of the statements she cites in support of her allegation that we are “bias[ed] and prejudice[d]” was untrue. It shows no inherent “bias or prejudice” to point out Mr. Fieger’s opposition. Similarly, it shows no “bias or prejudice” to identify the number of cases Mr. Fieger had on appeal at the time as a possible explanation for his interest in who sat on this Court. Such reference states no animus toward him, but only suggests the obvious: that Mr. Fieger is supporting and opposing candidates at least in part because he wants judges who will be most philosophically predisposed toward his
cases. These statements, in our judgment, as well as identifying whom Mr. Fieger supported and whom he opposed, were a reasonable way of explaining his active participation in our campaigns and drawing relevant and comprehensible distinctions between us and our opponents. In this regard, the United States Supreme Court has observed:
[O]pposition [to judicial elections] may be well taken (it certainly had the support of the Founders of the Federal Government), but the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about. “The greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process . . . the First Amendment rights that attach to their roles.” [Republican Party of Minnesota v White, 536 US 765, 787-788; 122 S Ct 2528; 153 L Ed 2d 694 (2002).]
In Michigan, and in other states with an elected judiciary and competitive and well-financed judicial campaigns, statements of the sort referenced by Mr. Fieger and Justice Weaver must be permissible to help the people make informed choices among judicial candidates of differing philosophies.
The statements that were made in 2000 were accurate, relevant, and, we believe, entirely fair commentary on aspects of that year's judicial election. As was noted in Adair v Michigan, 474 Mich 1027, 1042 (2006) (statement by Taylor, C.J., and Markman, J.), if a judge does that which the law and the standards of conduct permit, such action cannot ordinarily serve as the basis for disqualification. To hold otherwise would be to make the law into a “snare” for those who are operating well within its boundaries.
There is nothing in these statements made in 2000 that would suggest that Mr. Fieger cannot obtain a fair hearing in our courtroom. We believe that this is underscored by this Court's treatment of cases in which Mr. Fieger was counsel, as well as cases in which he was a party himself, over the past seven years. We are content to maintain Michigan law as it has always been; a judge is not automatically disqualified from hearing a case involving those who have been either the judge’s campaign supporters or opponents.
Justice Weaver next focuses on the lawsuits that Mr. Fieger has filed against us as justices of this Court. Here, Justice Weaver again essentially adopts verbatim Mr. Fieger's novel theory that a judge becomes “enmeshed” with one who sues him and that, as a result, that judge necessarily must be tempted to “vent his spleen” against the person. Under Justice Weaver’s reasoning, a judge becomes “enmeshed” at the sole option of the person who sues the judge. As one of us recently wrote in response to Mr. Fieger’s “enmeshment” argument:
[Such “enmeshment” exists] only because [Mr. Fieger] by his own actions, specifically by initiating a series of federal lawsuits against me and other Justices of this Court, has so “enmeshed” me. It cannot be that a judge can be required to disqualify himself or herself simply on the basis of such lawsuits. Grace v Leitman, 474 Mich 1081 (2006); People v Bero, 168 Mich App 545, 552 [425 NW2d 138] (1988). To allow [Mr. Fieger’s] lawsuits to constitute a basis for my disqualification because I have thereby become “enmeshed” with him would simply be to incentivize such lawsuits on the part of any attorney or litigant desirous of excluding a disfavored judge from participation in his or her case. [Grievance Administrator v Fieger, 475 Mich 1211, 1212 (2006) (statement by Markman, J.).]
Moreover, Justice Weaver’s argument that a judge cannot defend himself or herself against a frivolous lawsuit, or attempt to deter future frivolous lawsuits, by seeking sanctions when such lawsuits are brought would merely encourage frivolous lawsuits against judges. Indeed, if anyone can force a judge’s disqualification merely by suing that judge, then any litigant would have an easy method of judge-shopping, eliminating disfavored judges until the desired judge has been obtained. The destructive effect of such a rule is too obvious to require further elaboration.
In the same “enmeshment” vein, Justice Weaver cites several occasions on which Mr. Fieger has called us names or impugned us (e.g., “stupid,” never “practiced law,” has a “political agenda”), and again asserts that this has predisposed us against him. Again, Justice Weaver’s reasoning makes disqualification available at the instigator’s sole option. But, it is clearly the law that a lawyer cannot precipitate a basis for disqualification by being a provocateur. People v Bero, supra at 552. As one of us wrote earlier in response to Mr. Fieger when he originally raised this same argument:
[Mr. Fieger] argues that I have been a “target of personal abuse” from him and cannot be fair toward him. Whatever “abuse” respondent may or may not have directed toward me, I have never once called into question the propriety of his conduct. I have never questioned his right to direct any public criticism toward me or to undertake any financial contributions against me in the course of my campaigns for judicial office. Once again, it cannot be that a judge can be required to disqualify himself or herself on the basis of “abuse” that he has allegedly received from an attorney or litigant. To allow such conduct to constitute a basis for my disqualification would again simply be to incentivize such conduct on the part of any attorney or litigant desirous of excluding a disfavored judge from participation in his or her case. [Grievance Administrator v Fieger, supra at 1212 (statement by Markman, J.).]
It may sometimes be the case that, under circumstances such as these, a judge must conclude that he or she cannot decide a matter impartially. But, for the first 169 years of this Court’s existence, that decision has always belonged to the justice alone.
Justice Weaver next focuses on a statement from a fund-raising letter, sent by former Michigan Governor John Engler, that mentions Mr. Fieger’s name.3 However, far from showing any “bias or prejudice” on any judge’s part, this letter again merely bespeaks the reality of our state’s system of democratic judicial elections. In order for candidates for the Supreme Court to successfully run statewide campaigns for judicial office, their campaign committees must raise sufficient funds to pay for campaign advertising and other campaign costs.
Indeed, as this letter indicates, the need for such funds has recently become substantially more intense. Judicial campaigns have become considerably more expensive as an increasing range of interest organizations have come to participate in these campaigns, “independent opposition” campaigns have emerged, and substantial last-minute infusions of opposition campaign spending have appeared, on one occasion on an anonymous basis.4 In 2004, Mr. Fieger, by his own later admission in October 2005, orchestrated just such an anonymous campaign days before the election, spending $460,000 on opposition advertising. Raising money to address such efforts is a new and critical focus of contemporary judicial campaigns. The potential for significant, and well-funded, opposition requires fund-raising to offset the high costs of responding. That a fund-raising letter from a supporter cites these relevant historical facts in order to make more persuasive a plea for campaign contributions does not prevent a judge from faithfully performing his or her sworn duties.
Justice Weaver next cites the fact that one of us referred Mr. Fieger to the Attorney Grievance Commission in 1996. In essence, she faults that justice for complying with attorney ethics rules. The Michigan Rules of Professional Conduct provide that:
A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission. [MRPC 8.3(a) (emphasis added).]
In other words, a judge is obligated to inform the Attorney Grievance Commission about an attorney’s perceived misconduct; to fail to do so is to violate an explicit ethics rule. This rule does not distinguish between a judge who observes the alleged misconduct and a judge who is the object of it. But, under Justice Weaver’s reasoning, a judge must either turn a blind eye to attorney misconduct or risk disqualification. This simply cannot be. On the contrary, a judge who meets his or her ethical obligation to report attorney misconduct is not thereby assumed to be biased or unable to review impartially cases that come before him or her.5
Additionally, our Court—usually with Justice Weaver’s participation—has at times directed our clerk of court to refer attorneys to the Attorney Grievance Commission and judges to the Judicial Tenure Commission for investigation. No one has ever suggested that this practice, necessary when attorney or judicial conduct warrants further inquiry, bars justices from later considering either those cases or other cases involving these attorneys or judges. By Justice Weaver’s logic, because the mere act of referral displays actual bias, justices could never again sit whenever an attorney’s or a judge’s prior act had warranted a referral for investigation.
(1) Justice Weaver, until late in the consideration of this case, did not mention what she now cites as evidence of our actual “bias and prejudice,” statements made during the 2000 campaign. Six years have passed, during which none of us has made any additional statements concerning Mr. Fieger, and during which Mr. Fieger has filed numerous disqualification motions in which he has referenced the same campaign statements from 2000.
(2) In concluding that we have actual “bias and prejudice” toward Mr. Fieger, Justice Weaver not only professes to read our minds, but intimates that she does so on the basis of access to information not generally available to the public. Neither is true.
(3) Justice Weaver here departs from her previous practice in which, in numerous cases, she adhered to exactly the rule the majority is maintaining—that a justice resolves his or her own disqualification. In fact, as Justice Weaver conceded in Advocacy Org for Patients & Providers v Auto Club Ins Ass'n, 472 Mich 91, 96 n 1; 693 NW2d 358 (2005) (Weaver, J., concurring), she herself has elected not to participate in cases 251 times—a determination reached on each occasion without the participation of any other justice. As recently as June 1, 2006, she declined to decide Mr. Fieger’s motions for disqualification directed at us in this case, deferring instead to our determinations as the justices targeted by these motions. Grievance Administrator v Fieger, 475 Mich 1211 (2006) (statement by Weaver, J.). Without explanation, she now abandons all her previous practices on this Court and asserts that she may participate in deciding disqualification motions directed at other justice, at her sole discretion.6 (It is also noteworthy that Justice Weaver’s particularized concerns about Mr. Fieger’s disqualification motions began only after Mr. Fieger ceased targeting her with these motions.)
(4) Justice Weaver’s concerns about alleged “bias and prejudice,” grounded in large part on statements made in 2000 and a referral to the Attorney Grievance Commission made in 1996—neither of which has ever before been a concern of hers—is of a kind with other newfound concerns: (a) after 31 years on the bench, and, not surprisingly, never having uttered a word in favor of judicial term limits, and with the four of us having become a philosophical majority on the Court, Justice Weaver, after announcing her intention to resign, suddenly announces her intention to not resign, promising to use her position on this Court to garner legislative support for judicial term limits; (b) after 31 years on the bench, having never uttered a word concerning the disqualification procedures that this Court has followed since 1837, and with the four of us having become the exclusive subject of disqualification motions, overwhelmingly offered by Mr. Fieger, Justice Weaver has suddenly become a champion of altering disqualification procedures to make it easier to disqualify a justice for frivolous or political reasons; and (c) after 31 years on the bench, never having uttered a word about court rules that specify when judges may participate in cases involving parties that employ relatives, Justice Weaver suddenly demands a new standard applicable to a select group of her colleagues.
Each of us during our judicial service has sought to follow the highest standards of ethics and professionalism. We have sought to give faithful meaning to the law, to decide disputes fairly and impartially, and to approach each case without bias or prejudice. We are each proud of our records on this Court and, as long as we serve, are committed to conferring on every attorney and every litigant—Mr. Fieger not excepted—equal and evenhanded treatment under the law. And that is exactly what we have done in this case. A judge need not admire an individual, or respect his or her actions, in order to be able to accord the individual that which every party before this Court deserves—equal justice under law. We have looked into ourselves, as we must do whenever there is a motion for disqualification, and indeed even sometimes when there is not, and each of us has concluded that he or she is able to accord fair and impartial treatment to Mr. Fieger in this case. We believe that our individual records over the past eight years in addressing cases concerning Mr. Fieger personally, as well as his clients, clearly demonstrate this commitment.
The people of Michigan deserve better than they have gotten from Justice Weaver today, and so do we, her colleagues.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
STATE OF MICHIGAN
SUPREME COURT
GRIEVANCE ADMINISTRATOR,
Petitioner-Appellant,
v No. 127547
GEOFFREY N. FIEGER,
Respondent-Appellee.
CAVANAGH, J. (dissenting).
As the Attorney Discipline Board (ADB) has before explained, indeed, in the context of offensive remarks made by this very respondent,
[f]ew if any members of the Michigan judiciary will be cowed by such outbursts. . . . [O]ur system of justice is not put at risk if these statements are not censored. The public and the profession can express their revulsion at such crudity, while at the same time feeling pride in belonging to a society that allows its expression. If we write rules governing speech to quell such antics, then we will have truly lost our bearings. The judiciary is not so fragile. It is the First Amendment that needs protection. [Grievance Administrator v Fieger, ADB No. 94-186-GA, opinion issued September 2, 1997 (Fieger II).]
Such protection has been lost today. The majority not only decides a question not before it, but, more troubling, its erroneous conclusions mark a sweeping expansion of the Michigan Rules of Professional Conduct. This expansion precipitates serious constitutional implications and, despite the majority’s protestations to the contrary, does in fact impermissibly exalt the protection of judges’ feelings over the sanctity of the First Amendment’s guarantee of freedom of speech. Thus, I respectfully dissent.
Although this Court granted leave to consider whether the ADB can declare a rule of professional conduct unconstitutional, that issue is not ripe for review because the ADB did not declare a rule unconstitutional, a majority of the ADB did not opine that it had the authority to do so, and the ADB’s dismissal of the complaint against respondent was not premised on the purported unconstitutionality of a rule. Thus, the majority errs in addressing this question.
In deciding respondent’s appeal, the ADB issued a splintered opinion. Three of the eight participating board members wrote that respondent’s conduct did not fall within the cited rules of professional conduct because the comments were not made “to” or “in” the tribunal. Framing it as an alternative basis for its holding, the lead opinion reasoned that the rules should be read narrowly to avoid constitutional problems. The lead opinion stated that even if remarks made outside the context of a pending case were actionable, the rules did not sufficiently inform a person “what statements might be deemed impermissibly discourteous or disrespectful by the Attorney Grievance Commission, or by a hearing panel, or this Board.”
Two members concurred in part and dissented in part. They wrote that the rules did encompass respondent’s statements, but the First Amendment protected his right to make those statements. The three remaining members dissented, opining that the rules were constitutional and that respondent violated them.
Thus, there is no need to answer the question into which the majority delves because the ADB neither declared the rules unconstitutional nor purported authority to do so. Rather, the ADB’s lead opinion first held that the rules did not cover respondent’s comments. Only then did it mention the constitutional aspects of the rules, but instead of declaring the rules unconstitutional, it merely held that because of the constitutional principles of free speech, the rules should be read narrowly. It then concluded that under a narrow reading, respondent’s comments did not violate the rules. Of course, this view did not garner a majority, and respondent was only vindicated because two of the five remaining board members believed that respondent’s comments were protected by the First Amendment. But the true disagreement between those two factions was over whether respondent’s conduct was even covered by the rules, not over whether the rules themselves were unconstitutional.7 In other words, the rules survived the ADB’s decision—the board did not purport to invalidate them. As such, any opinion by this Court regarding the ADB’s power to declare rules of professional conduct unconstitutional is purely advisory in nature and outside the bounds of our constitutionally imposed duty.
Nonetheless, because the majority persists in issuing its statement on this matter, it is necessary to illuminate the error in the majority’s analysis, which analysis asserts that the ADB lacks the authority to render a rule unconstitutional. In carrying out our duty to regulate the legal profession in the state of Michigan, see Const 1963, art 6, § 5 and MCL 600.904, we created a governing body that operates as a court system reserved for attorney disciplinary matters, and which mirrors the ordinary trial and appellate system. See MCR 9.101 et seq. The attorney discipline system consists of a prosecutorial component (the Attorney Grievance Commission [AGC]), MCR 9.108; hearing panels composed of members who act as judges by conducting public, trial-like proceedings during which they receive evidence and after which they render any necessary discipline, MCR 9.111; and a review board (the ADB), which fulfills the judge-like appellate function should an attorney dispute a disciplinary order of a hearing panel, MCR 9.110.
Notably, MCR 9.110(A) describes the authority we bestowed on the ADB as follows: “The Attorney Discipline Board is the adjudicative arm of the Supreme Court for discharge of its exclusive constitutional responsibility to supervise and discipline Michigan attorneys.” (Emphasis added.) The ADB is further charged with disciplining attorneys, MCR 9.110(E)(5), suspending and disbarring attorneys, MCR 9.110(E)(6), and reviewing the AGC’s final orders of discipline, MCR 9.110(E)(4).
It is indisputable, as Justice Kelly points out, that this Court is vested with authority to declare enactments unconstitutional. And it appears from the plain language of the court rule that we have delegated this power to the ADB. When we charged the AGC with “discharg[ing our] constitutional responsibility,” we listed no restrictions in this delegation of power. And, importantly, it seems that had we intended to limit the delegation accordingly, we would have explicitly reserved that power unto ourselves when we undertook the task of delegating our constitutional power to another entity, which task was certainly not taken lightly.
Further, it makes little sense to charge the disciplinary board with carrying out this Court’s duties and requiring it to discipline attorneys, reinstate them, and review final orders of discipline and dismissal in an appellate function without the benefit of deciding constitutional issues raised in that process. We have certainly not restricted trial or appellate courts from declaring enactments unconstitutional, and such rulings are always subject to this Court’s review, just as are decisions regarding attorney discipline. Moreover, the fact that we created the attorney disciplinary rules or that there are nonattorneys on the ADB is of no moment—this Court remains the final authority on any action the ADB takes, and we can overturn any of its decisions we perceive as erroneous.
In carrying out its duties, and to render a just and complete decision, it is only logical that the ADB consider any and all arguments an attorney raises in his or her defense. And constitutional issues will inevitably be raised during the attorney disciplinary process. Petitioner’s assertion that the board can consider constitutional principles in its decision-making process, but is nonetheless restricted from finding a rule unconstitutional, is an odd one indeed. This would require our adjudicative arm, to which we gave full charge, to consider only half the question. This Court simply did not restrict the ADB in that way.
In any event, as already discussed, the board did not declare any rule unconstitutional. Rather, it merely considered the constitutional issues respondent raised and construed the rules narrowly in light of those principles, an exercise that the Grievance Administrator acknowledges is permitted. As the Sixth Circuit Court of Appeals has observed:
Even if the Board could not declare a Rule of Professional Conduct unconstitutional—a proposition about which we are not convinced—“it would seem an unusual doctrine, and one not supported by the cited case[s], to say that the [Board] could not construe [the Rules of Professional Conduct] in the light of federal constitutional principles.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., 477 U.S. 619, 629, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986). The Board could, short of declaring a Rule unconstitutional, refuse to enforce it or, perhaps, narrowly construe it. [Fieger v Thomas, 74 F3d 740, 747 (CA 6, 1996).]
Thus, the ADB’s actions were within its authority.
Moreover, for the reasons explained by Justice Kelly, the majority’s reliance on Wikman v Novi, 413 Mich 617; 322 NW2d 103 (1982), Lewis v Michigan, 464 Mich 781; 629 NW2d 868 (2001), and Const 1963, art 3, § 2 are entirely misplaced because none of those authorities compels the majority’s result.
Although, again, the question is not ripe, the majority errs in finding a restriction on the Court’s power to delegate constitutional power and in holding that the ADB cannot declare a rule of professional conduct unconstitutional. The majority proffers no persuasive authority to justify its holding. Rather, considering that this Court created the ADB, delegated to it the power to carry out our duty of maintaining discipline in the legal profession, and did not otherwise restrict its authority, it should logically follow that the ADB can both consider constitutional questions and declare a rule of professional conduct unconstitutional.
The lead opinion of the ADB correctly concluded that respondent’s public, out-of-court comments, made after the conclusion of the case about which he spoke, did not violate either Rule 3.5(c) or 6.5(a) of the Michigan Rules of Professional Conduct. The rules alleged to be violated simply do not prohibit the type of speech at issue in this case. The majority’s conclusions to the contrary are reached haphazardly and without any regard for the plain language, history, or context of the rules. In a melodramatic fashion, the majority misrepresents respondent as arguing that “there can be no courtesy or civility rules at all of this sort,” ante at 8, and the dissents as arguing for a “repudiation of ‘courtesy’ and ‘civility’ rules,” ante at 33. Further, the majority loftily declares that the “respect for the wisdom of those who have preceded us in the judiciary in this country and the traditions of the legal process counsel that narrow and carefully tailored regulations of the sort set forth in MRPC 3.5(c) and MRPC 6.5(a) are necessary adjuncts to a responsible legal system,” ante at 9 (emphasis added), but then proceeds to interpret these rules with a brush so broad as to now encompass any offensive language used to criticize a judge. The majority’s troublesome expansion of those rules impermissibly silences harsh criticism of the judiciary about a concluded case, thus invading the purview of the First Amendment’s guarantee of the right to speak freely.
MRPC 3.5(c) restrains attorneys from “engag[ing] in undignified or discourteous conduct toward the tribunal.” At the core of the arguments here is the interpretation of the phrase “toward the tribunal.” As is evident from the context of this rule, its historical evolution, and its plain language, this phrase pertains only to conduct that occurs in a tribunal or in the immediate environs of a tribunal, such as in judicial chambers.8 Because respondent did not make his comments in that setting, but, rather, made them during a radio broadcast, he did not violate the rule.
While respondent does not appear to argue that his comments were particularly dignified or courteous, the crux of this rule is to prevent such comments in or in the immediate environs of a tribunal, not at any time or in any space. In other words, conduct in or near a courtroom, such as conduct in judicial chambers or possibly comments made in pleadings filed with the court can be said to be conduct “toward” the tribunal. The majority’s removal of the proximate element of this rule does indeed result in “protecting the sensitivities of judges,” ante at 9, while at the same time raising grave constitutional implications by restricting a lawyer’s ability to speak outside the context of a judicial proceeding.9 See part III of this opinion. Further, contrary to the majority’s assertion otherwise, such a broad expansion of the rule can and will preclude criticism of the “most robust character,” ante at 13, because it will prohibit attorneys from commenting on legal proceedings of which they have been a part. Notwithstanding the indisputable ability of this Court to prescribe ethical and disciplinary rules, see ante at 7-13, the majority’s myopic focus on what we are permitted to do in the abstract eclipses the more critical question whether this particular ethics rule was crafted to apply to this particular conduct.
MRPC 3.5(c) was designed, as is evident from the placement of the rule in the entire set of professional conduct rules, a historic examination of the rule, and the way the rule has been applied, to control the conduct of attorneys in their interactions with the tribunal in their role as advocates for clients, not the conduct or speech of attorneys far removed from the tribunal and the advocatory process. The Michigan Rules of Professional Conduct are divided into eight chapters, each with a descriptive title. Within those chapters, each rule also has a descriptive heading. Notably, Rule 3.5(c) appears in chapter 3, entitled “Advocate,” and has a heading entitled “Impartiality and Decorum of the Tribunal.”10 This arrangement is but the first indication that the rules within chapter 3 are meant to govern attorneys in their active role as advocates and that the rules within the subsections of Rule 3.5 are directed toward behavior that affects the decorum of the forum involved, which in turn connotes a required nexus between the conduct and the actual forum.
In keeping with that theme, the other two subsections of Rule 3.5 prohibit an attorney from seeking to influence judges, jurors, prospective jurors, or other officials, MRPC 3.5(a), and prohibit ex parte communications, MRPC 3.5(b). And the remaining provisions in chapter 3 governing the attorney as advocate clearly pertain to an attorney’s direct dealings with the court system and the dispensation of justice. Those rules are headed “Meritorious Claims and Contentions,” “Expediting Litigation,” “Candor Toward the Tribunal,” “Fairness to Opposing Party and Counsel,” “Trial Publicity,” “Lawyer as Witness,” “Special Responsibilities of a Prosecutor,” and “Advocate in Nonadjudicative Proceedings.” None of these rules, by its heading or its content, purports to govern conduct that is unrelated to a potential or ongoing proceeding before a tribunal.
Importantly, the rules appearing in other chapters of the Michigan Rules of Professional Conduct do govern the conduct of attorneys outside of a tribunal. Specifically, chapter 8, “Maintaining The Integrity of the Profession,” contains two rules that are eminently more suited to curtailing the speech of attorneys outside the context of a legal proceeding than MRPC 3.5(c). For instance, MRPC 8.2(a) forbids an attorney from making “a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office.” And MRPC 8.4, which sets forth the rules regarding “Misconduct,” expressly forbids attorneys from engaging in behavior “that is prejudicial to the administration of justice[.]” MRPC 8.4(c). It would be difficult to say that the broad sweep of MRPC 8.2 and 8.4 does not extend to conduct that shares no physical nexus with a tribunal. In fact, instances too numerous to mention here exist in which an attorney who acted questionably outside the context of a tribunal was charged with violating the rules of chapter 8, but, notably, not Rule 3.5(c). Clearly, then, comments about judges made outside the context of a tribunal are governed elsewhere in the rules, lending further credence to the conclusion that the more precise scope of Rule 3.5(c) encompasses only behavior in or in connection with a tribunal.
Moreover, the comment accompanying this rule sustains the conclusion that the rule is directed only toward conduct that occurs in the tribunal or in the immediate environment of a tribunal.11 The comment on MRPC 3.5 states as follows:
Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the Michigan Code of Judicial Conduct, with which an advocate should be familiar. . . .
The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from undignified or discourteous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
Clearly, this comment envisions conduct in the context of tribunal proceedings. The comment speaks of “improper[ly] influenc[ing a] tribunal,” “present[ing] evidence and argument,” deciding a case, “speak[ing] on behalf of litigants,” “stand[ing] firm against abuse by a judge,” “present[ing] the cause,” “protect[ing] the record for . . . review,” and using patience in place of “belligerence” and “theatrics.” Each of these phrases is clearly connected with tribunal behavior or behavior with respect to an ongoing proceeding (see Rule 3.5[a], which governs improper influence, and Rule 3.5[b], which prohibits ex parte communication), and the comment does not refer to, and cannot be interpreted to govern, attorney conduct that occurs outside the context of a tribunal proceeding or the tribunal itself.
Further, when interpreting MRPC 3.5(c), the rule’s genesis, which can be traced to the American Bar Association’s (ABA) former Model Code of Professional Responsibility Rule 7-106(C)(6), is also instructive. That rule, tellingly titled “Trial Conduct,” provided that “[i]n appearing in his professional capacity before a tribunal, a lawyer shall not . . . [e]ngage in undignified or discourteous conduct which is degrading to a tribunal.” Our former disciplinary rule, DR 7-106(C)(6), was identical. Subsequently, the ABA instituted its Model Rules of Professional Conduct, retaining the following concept from DR 7-106(C)(6): “A lawyer shall not . . . engage in conduct intended to disrupt a tribunal.” ABA Model Rule 3.5(d).12 We also replaced our former disciplinary code with rules of professional conduct, and our current MRPC 3.5(c) was fashioned from the new ABA rule as well as the corresponding former disciplinary rules. But despite minor wording changes to the rule, nothing about the current wording of the rule (“toward the tribunal”) nor its placement within the rules (under the “Advocate” chapter) suggests any intent of this Court to broaden the scope of the rule to situations beyond the context of tribunal proceedings.
As Justice Kelly explains, the revisions to MRPC 3.5(c), which deviated from the ABA’s revisions to its similar rule, merely eliminated the inquiry into an attorney’s intent that the ABA retained. Our rule instead focuses purely on whether the conduct can be said to be “undignified” or “discourteous,” without respect to whether the lawyer intended it to be so. But both our rule and the ABA’s rule contextually and textually preserved the condition that, to be punishable, the conduct must occur in a tribunal or its immediate environs. The overwhelming contextual evidence of this nexus is the placement of both rules among other rules governing conduct in a tribunal or its environs and under chapter headings referring to the decorum of a tribunal. And the textual evidence of the nexus derives from the ABA’s language, “disrupt a tribunal,” and the Michigan rule’s language, “toward a tribunal.”
Of course, it is also important to remark that there has been no warning to the bar that the transformation of DR 7-106(C)(6) into MRPC 3.5(c) allegedly served to extend the reach of the latter to conduct occurring outside a tribunal and removed from the active legal process. Although there is compelling evidence that the new rule was not, in fact, so extended, to the extent that any gray area exists, it is preferable to resolve the question most favorably to respondent. See State Bar Grievance Administrator v Corace, 390 Mich 419, 434; 213 NW2d 124 (1973). The inherent fairness of this approach not only is self-evident, but also serves to avoid any precarious trespass over the boundaries of the First Amendment by requiring notice of what type of conduct will be prohibited before punishing it.13
Significantly, this Court has not had occasion to interpret MRPC 3.5(c) in its present form before today. Nor has research revealed any ethics opinions regarding this rule—save, critically, one. That ethics opinion involved this same respondent who found himself in quite the same situation as the present case. Fieger II, supra. There, it was claimed that respondent publicly made “knowingly false or reckless statements about various judges and a county prosecutor,” and he was likewise charged with violating MRPC 3.5(c), along with other rules. Both the hearing panel and the ADB refused to find that respondent’s statements violated Rule 3.5(c). The ADB agreed with the panel’s finding that Rule 3.5(c) is intended to govern only conduct directed to the tribunal in a pending matter. The panel had found that because respondent’s comments were made “about judges, and not to them in pending matters,” respondent had not violated the rule. The ADB agreed, concluding as follows:
We agree with the panel that the intent of the rule is to preserve the decorum of the tribunal so that proceedings may be conducted in an orderly fashion. Rude and undignified behavior can detract from the respect an adjudicator must possess in order to effectively manage a courtroom. The rule is obviously directed at preventing proceedings from devolving into chaos because of lack of respect for the judge. [Fieger II, supra at 31.]
Thus, respondent has already been subject to disciplinary proceedings for speaking out publicly in criticism of the judiciary. Yet he was explicitly absolved of the allegation that public comments about judges violated Rule 3.5(c) by both the hearing panel and the review board. And we denied the Grievance Administrator’s application for leave to appeal that decision. 469 Mich 1241 (2003).14 Today, the majority abruptly changes the rule using a cursory and incomplete analysis that pays no heed to history, context, or even plain text. Those who admire the majority for its professed adherence to textualism may be surprised. Respondent probably will not be.
Under a scrupulous reading of the rule and the comment, and considering their evolution, there should be no other conclusion but that the rule governs only conduct that occurs in or near the tribunal in the context of litigation. Respondent’s comments, made during a radio broadcast, were not made in a tribunal, near a tribunal, or in any context remotely related to the litigation process or the dispensation of justice. As such, just as respondent did not violate Rule 3.5(c) in Fieger II, he did not violate it in this case.
Justice Kelly also correctly points out the deficiency in the majority’s assertion that limiting the rule’s application to tribunal environs would make the rule “superfluous” in light of a trial court’s contempt powers. See ante at 19-20; MCL 600.1711(1). The most flagrant error in the majority’s assertion is its obliviousness to the fact that Rule 3.5(c) applies not just to courts and courtrooms, but to all tribunals. Only courts have contempt power. Thus, because not all “tribunals” have contempt power, the disciplinary rule is in no way duplicative of the contempt statute.
Moreover, MRPC 3.5(c), like the rule from which it was adopted, “carries with it the option of a disciplinary sanction as a supplement to the traditional power of judges to punish disruptive behavior as contempt of court.” Office of Disciplinary Counsel v Breiner, 89 Hawaii 167, 173; 969 P2d 1285 (1999) (emphasis added), citing 1 Hazard & Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, § 3.5:401 (2d ed). Further, because only a court has contempt powers, MRPC 3.5(c) provides an avenue for others who may be offended by an attorney’s conduct to seek redress by filing a grievance. And MRPC 3.5(c) allows the body charged with regulating attorney conduct to impose a far more consequential range of discipline on an attorney for violating the rule, from public censure to disbarment. Thus, the rule is in no way rendered “superfluous” by MCL 600.1711(1), and the majority’s contention otherwise is irrational.
And I, like Justice Kelly, dispute the majority’s assertion that construing MRPC 3.5(c) to limit its application to tribunals “fails to accord consideration to the importance the courtesy and civility rules serve as a vehicle for preserving the public’s confidence in the integrity of the legal process.” See ante at 20. “[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” Bridges v California, 314 US 252, 270-271; 62 S Ct 190; 86 L Ed 192 (1941).
Read in its proper context, which the majority’s conclusory analysis fails to do, it is evident that MRPC 3.5(c) applies only to statements and conduct in a tribunal or its immediate environs. Had this Court intended its changes to this rule, which before indisputably governed conduct in a tribunal, to broadly expand the rule to prohibit statements about tribunals, it would have used the phrase “about a tribunal.” And, undoubtedly, such a broad expansion, with such weighty constitutional implications, would have been widely noticed, discussed within the bar, and probably challenged long before now. But this Court did not expand the rule in that manner, as is clear under any fair analysis. Such a change was not needed because other rules govern conduct that occurs elsewhere. Because respondent’s comments were far removed from the setting to which the rule applies, he did not violate it.
Respondent correctly contends that his conduct did not violate MRPC 6.5(a) because the rule does not apply to “a lawyer’s out-of-court, public criticism of the judiciary.” The rule states as follows:
A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously 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.
An issue similar to that discussed with respect to Rule 3.5(c) inheres in this rule. Specifically, just as Rule 3.5(c) contemplates conduct in a courtroom, Rule 6.5(a) is attendant to lawyers’ interactions with clients and others with whom the lawyer comes into contact in the course of the legal process. Both the comment to this rule, which illuminates the overarching principles behind the rule’s requirements, and the consistent way in which the rule has been applied, support this conclusion. In relevant part, the comment states:
A lawyer is an officer of the court who has sworn to uphold the federal and state constitutions, to proceed only by means that are truthful and honorable, and to avoid offensive personality. It follows that such a professional must treat clients and third persons with courtesy and respect. For many citizens, contact with a lawyer is the first or only contact with the legal system. Respect for law and for legal institutions is diminished whenever a lawyer neglects the obligation to treat persons properly. It is increased when the obligation is met.
A lawyer must pursue a client’s interests with diligence. This often requires the lawyer to frame questions and statements in bold and direct terms. The obligation to treat persons with courtesy and respect is not inconsistent with the lawyer’s right, where appropriate, to speak and write bluntly. Obviously, it is not possible to formulate a rule that will clearly divide what is properly challenging from what is impermissibly rude. A lawyer’s professional judgment must be employed here with care and discretion.
A judge must act “[a]t all times” in a manner that promotes public confidence in the impartiality of the judiciary. Canon 2(B) of the Code of Judicial Conduct. See also Canon 5. By contrast, a lawyer’s private conduct is largely beyond the scope of these rules. See Rule 8.4. However, a lawyer’s private conduct should not cast doubt on the lawyer’s commitment to equal justice under the law. [Emphasis added.]
Again, it is clear from the comment that Rule 6.5(a) is circumscribed to an attorney’s treatment of persons with whom the attorney encounters in the legal process. This, of course, accords with the rule’s usage of the term “treat.” “Treat” means “[t]o act or behave in a specified manner toward.” The American Heritage Dictionary, New College Edition (1981). Just as respondent did not conduct himself “toward” the tribunal for purposes of Rule 3.5(c), he likewise did not conduct himself “toward” the tribunal for purposes of Rule 6.5(a). To hold otherwise contorts the plain meaning of the word “treat” and culminates in the curious conclusion that when a person speaks disrespectfully about another person outside that other person’s presence, the speaker is somehow “treating” that person in a certain manner.
Indeed, our disciplinary arm has sharply limited its application of the rule to instances of direct contact and has neither interpreted nor applied the rule in any other manner. Violations of the rule have been found only in instances of, for example, improper sexual conduct, Grievance Administrator v Neff, ADB No. 95-94-GA, notice of suspension issued April 30, 1996; Grievance Administrator v Bowman, ADB No. 95-95-GA, notice of reprimand issued January 3, 1996; Grievance Administrator v Childress, ADB No. 95-146-GA, notice of suspension issued December 6, 1996; Grievance Administrator v Childress, ADB Nos. 97-169-GA and 97-183-FA, notice of suspension issued June 9, 1998; Grievance Administrator v Williams, ADB No. 98-203-GA, notice of suspension issued February 1, 2000; Grievance Administrator v Gold, ADB No. 99-350-GA, opinion issued May 16, 2002; Grievance Administrator v Kohler, ADB No. 01-49-GA, notice of suspension issued December 10, 2001; physical altercations with opposing counsel, Grievance Administrator v Lakin, ADB No. 96-166-GA, notice of reprimand issued November 13, 1997; Grievance Administrator v Golden, ADB No. 96-269-GA, opinion issued May 14, 1999; Grievance Administrator v McKeen, ADB No. 00-61-GA, opinion issued May 7, 2003; vulgar and profane comments that interfered with a deposition, Grievance Administrator v Farrell, ADB No. 95-244-GA, notice of reprimand issued December 3, 1996; and threatening statements made directly to another person, Grievance Administrator v Warren, ADB No. 01-16-GA, opinion issued October 2, 2003; Grievance Administrator v Sloan, ADB Nos. 98-106-GA and 98-176-GA, notice of suspension issued April 1, 1999. Further, in some instances in which the only conduct at issue was name-calling in the course of direct communication, the rule was found not to be violated. See, e.g., Grievance Administrator v Szabo, ADB No. 96-228-GA, opinion issued February 11, 1998; Grievance Administrator v MacDonald, ADB No. 00-4-GA, opinion issued January 25, 2001.
As the lead opinion of the ADB correctly observed:
MRPC 6.5(a), like MRPC 3.5(c), seems clearly to extend to discourtesy toward and disrespect of participants in the legal system when such conduct interferes or has the potential to interfere with the orderly administration of justice. To apply this rule in this case, we would have to hold that “treat” means to make comments about a person outside their [sic] presence, after the conclusion of the proceedings. This would sweep in any comment critical of a participant’s role in the justice system even after that role had been concluded. In this country, many trials or other proceedings are subject to discussion and analysis after their conclusion. Nothing in Rule 6.5 suggests that “persons involved in the legal process” may not ever be criticized for their role in that process, not even after the involvement has ceased.
Nor is the majority’s treatise on our duty to oversee the legal profession and foster rules geared toward maintaining respect for the judiciary persuasive justification for the broad-reaching interpretation it adopts. As the United States Supreme Court has explained:
We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner nor in such way as to impinge on the freedom of political expression or association. A bar composed of lawyers of good character is a worthy objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal. It is also important both to society and the bar itself that lawyers be unintimidated—free to think, speak, and act as members of an Independent Bar. [Konigsberg v State Bar of California, 353 US 252, 273; 77 S Ct 722; 1 L Ed 2d 810 (1957).]
Further, as we explained in In re Chmura, 461 Mich 517, 540; 608 NW2d 31 (2000), “the state’s interest in preserving public confidence in the judiciary does not support the sweeping restraints imposed by Canon 7(B)(1)(d).”15 Likewise here, the directive of Rule 6.5(a) that attorneys must treat others involved in the legal process with courtesy and respect cannot be interpreted as a sweeping restraint on attorney comment regarding concluded cases.
Reading the rule in its proper context and affording the term “treat” its common and ordinary meaning, it is again clear that respondent, by his comments, did not “treat” anyone involved in the legal process. Rather, his comments were permitted public criticism of Court of Appeals judges. Just as is the case with Rule 3.5(c), an interpretation of this rule that enlarges the realm of sanction to public criticism unrelated to the process of administering justice treads dangerously in the waters of the First Amendment’s protections of free speech. Respondent’s speech was not prohibited by Rule 6.5(a) and cannot be found to have violated it.
The majority observes that restraints on speech can be more encompassing if the speech pertains to an ongoing matter. See ante at 15; Gentile v State Bar of Nevada, 501 US 1030, 1070; 111 S Ct 2720; 115 L Ed 2d 888 (1991). It concludes that the matter about which respondent spoke (Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278; 602 NW2d 854 [1999]) was indeed pending and posits that this justified stricter curtailment of respondent’s right to speak publicly about it. Notwithstanding that the rules did not apply to respondent because they were not comments “toward” the tribunal and respondent did not “treat” the tribunal discourteously, the majority is quite misguided in concluding that the Badalamenti case was “pending.”
As Justice Kelly observes, legal and lay dictionaries define “pending” in much the same way: “[r]emaining undecided; awaiting decision ,” Black’s Law Dictionary (8th ed), and “awaiting decision or settlement.” Random House Webster’s College Dictionary (1997). Because of the similarity, it is unnecessary to determine whether the term “pending” has acquired a peculiar meaning in the law. The outcome is identical despite which dictionary is used. A “pending” matter is an undecided matter awaiting decision, which the Badalamenti case clearly was not.
The majority points to several court rules and, because they are inapplicable, engages in an exercise of lexical gymnastics to reach its erroneous conclusion. Specifically, the majority cites MCR 7.215(F)(1)(a), which explains when Court of Appeals opinions become “effective.” That rule states that an opinion becomes “effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court[.]” Notably, the rule does not use or define the term “pending” and is in no way referenced by or connected to the disciplinary rule at issue. As such, it is a poor source by which to interpret when a case might be “pending” for purposes of restricting attorney comment, particularly when the word’s common and legal meanings are flatly ignored.
Similarly unhelpful is the majority’s striving attempt to support its position by citing various other procedural rules, specifically MCR 7.302(C)(2)(a), (b), and (c), MCR 7.210(H), and MCR 7.317(C) and (D), that govern filing applications for leave to appeal to this Court and returning the record to the lower court. See ante at 15-16 & n 14. Of course, those rules say nothing about when a Court of Appeals opinion is either “effective” or still pending. But more importantly, the majority fixates on our procedural mechanisms to the complete disregard of the constitutional framework within which the question must be examined. The bounds of free speech are not a function of procedural court rules, as discussed later. Rather, the inquiry must center on whether the type of harm sought to be prevented is imminent if the speech is not curtailed. When a record is returned to the lower court is completely irrelevant to a discussion regarding whether speech about a case can be silenced.
The majority also “reveals” that respondent ultimately moved for rehearing and for leave to appeal as if this were damning evidence of the pendency of the Badalamenti case. Ante at 17 & n 17. It is not. Nothing the majority points to, and nothing uncovered in an exhaustive jurisdictional search, supports the novel notion that speech can be restricted until the time when no further relief from a judgment can ever be sought.
Just as strangely, the majority states that the Badalamenti case was “‘begun, but not yet completed’” because the Court of Appeals, “by granting a motion for reconsideration or rehearing, could still have affected the substantial rights” of respondent’s client. Ante at 17. It further opines that the case was still “awaiting rendition of a final judgment” because “Mr. Fieger filed an application for leave to appeal in this Court . . . .” Ante at 18 n 17. This is faulty logic at its core. When respondent made his statements, there was no motion for reconsideration. When respondent made his statements, the case was not “awaiting rendition of a final judgment” because respondent had not, in fact, filed an application for leave to appeal in this Court. It cannot be said any more simply: nothing that had begun lacked completion.
Further, without support, the majority decides that the opposite of “pending” is “final.” Ante at 17 n 17. Proffering a purported antonym, with nothing more, to divine the meaning of a word is certainly a novel approach, but in any event, the attempted correlation does not withstand scrutiny because the court rules on which the majority relies explain when a judgment is “effective” and when the Court of Appeals should return the record to the lower court. The uncomplicated task the majority confounds is deciphering the meaning of the word “pending.” Rather than conduct a simple application of the plain meaning of the word to the facts at hand, the majority circumscribes its assessment of the word “pending” to unrelated court rules, short-shrifting respondent—and any other attorney who wishes to engage his or her right to free speech—and resulting in a contorted analysis.
Further, while MCR 7.302 discusses applications for leave to appeal to this Court, it does not address when a trial court judgment, a matter from this Court, or a matter from any other judicial or administrative agency is “pending.” And while the majority does not assert that MRPC 3.5(c) curtails only speech about Court of Appeals opinions, its analysis regarding when a Court of Appeals case is “pending,” which focuses only on when the judgment is “effective,” fails to consider any potential incongruities that may arise with respect to when it is “safe” to speak about non-Court of Appeals cases. In other words, by failing to apply in a straightforward manner either the common or the legal meaning of “pending,” the majority allows for vastly different rules in similar scenarios. And, oddly, the majority suggests that a different rule may apply when a court has accepted a case on appeal. Ante at 16 n 15. To suggest that a case is pending after a final judgment is rendered and while no motions for reconsideration or appeal have been filed, but that it may not be pending after the case has been accepted on appeal, is counterintuitive logic to say the least.
Last, it is paramount to observe that when an enactment threatens to encroach on a person’s constitutional guarantees, “‘every reasonable construction must be resorted to, in order to save [the enactment] from unconstitutionality.’” Edward J DeBartolo Corp v Florida Gulf Coast Bldg & Constr Trades Council, 485 US 568, 575; 108 S Ct 1392; 99 L Ed 2d 645 (1988), quoting Hooper v California, 155 US 648, 657; 15 S Ct 207; 39 L Ed 297 (1895). Interpreting the