Jottings By An Employer's Lawyer

Thursday, August 03, 2006

Dismissal of Case Because of Statements to Press Upheld by Michigan S.Ct.

Wading into a thicket with constitutional dimensions, the Michigan Supreme Court in a 4-3 decision affirmed the dismissal of a sexual harassment case after plaintiff's counsel publicized certain evidence that the Court had excluded. Maldonado v. Ford Motor Co. (Mich. 7/31/06),

A hat tip to Julie Creswell of the NYT for her story which provides background information if you are not ready to wade through the 70 page opinion. The evidence that was being publicized included a 1995 conviction for indecent exposure, later expunged, against a supervisor accused of exposing himself to women who worked at a Ford plant. Apparently 4 lawsuits arose out of the supervisor's alleged conduct.

This is not a case of a simple one time comment, as highlighted by a footnote in the Court's opinion:
The following is a list of the publications stemming from plaintiff’s counsel’s September 11, 2001, press release, many of which refer to Bennett’s excluded conviction:
  • (1) The Associated Press wire story, September 12, 2001, referencing the excluded conviction;
  • (2) an article in the Detroit Free Press, September 13, 2001, referencing the excluded conviction;
  • (3) an article by the United Press International, October 10, 2001, referencing the excluded conviction;
    (4) The Associated Press wire story, October 10, 2001, referencing the excluded conviction;
  • (5) a Fox 2 news broadcast held at the law office of Scheff and Washington, October 10, 2001, referencing the excluded conviction and providing a closeup of the conviction papers;
  • (6) a WDIV news broadcast, October 10, 2001, referencing the excluded propensity evidence; and
  • (7) an article in the Oakland Press, October 11, 2001, referencing the excluded conviction.
The Court saw it as a question of a court's power to police the justice system:
The issue in this case pertains to the extent of a trial court’s authority to govern the conduct of counsel and their clients in court proceedings. Where the Michigan Constitution authorizes us to make rules to govern court proceedings, the authority to enforce those rules inescapably follows. At the heart of preserving an organized polity, we must attend to relevant issues, including concerns over belligerent, antagonistic, or incompetent lawyering. To this end, we affirm the authority of trial courts to impose sanctions appropriate to contain and prevent abuses so as to ensure the orderly operation of justice.
The Court was not unaware of the constitutional dimension, but found the lower court's order a "narrow and necessary limitation aimed at protecting potential jurors from prejudice," not a violation of the First Amendment. A contention vigorously disagreed with by the three dissenters. Given this issue, the U.S. Supreme Court may very well be asked to weigh in.

Regardless of whether it is or not, it is an important opinion for anyone involved in a case that is being "tried in the press" or for lawyers reflecting on how we should behave. I admit a visceral opposition to such conduct, feeling strongly that lawsuits should be tried in the court room not the press. That view was re-enforced after a videotape that was the centerpiece of several harassment lawsuits I was defending was first hyped, then played on the local tv news during sweeps week, a period known more for sensationalism than serious journalism.

It is also an important case as a reminder of how lawyers are viewed and for reflection on how it is that we carry out our role in the justice system. Unfortunately, the conduct of counsel on neither side escapes unscathed in the opinions.

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