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Michigan Supreme Court Lansing, Michigan

Opinion
JUSTINE MALDONADO, Plaintiff-Appellee/ Cross-Appellant, v FORD MOTOR COMPANY, Defendant-Appellant/ Cross-Appellee and DANIEL P. BENNETT, Defendant. _______________________________ BEFORE THE ENTIRE BENCH CORRIGAN, J.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 31, 2006

No. 126274

In this case we consider the essential authority of trial courts to control the proceedings before them. 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. We reiterate that trial courts possess the inherent authority to sanction litigants and their counsel, including the power to dismiss an action. Banta v Serban, 370 Mich 367, 368; 121 NW2d 854 (1963); Persichini v Beaumont Hosp, 238 Mich App 626, 639-640; 607 NW2d 100 (1999); Prince v MacDonald, 237 Mich App 186, 189; 602 NW2d 834 (1999). This power is not governed so much by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. See Chambers v NASCO, Inc, 501 US 32, 43; 111 S Ct 2123; 115 L Ed 2d 27 (1991). We further acknowledge that our trial courts also have express authority to direct and control the proceedings before them. MCL 600.611 provides that "[c]ircuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts' jurisdiction and judgments." Additionally, MCR 2.504(B)(1) provides that "[i]f the plaintiff fails to comply with these rules or a court order, a defendant may move for dismissal of an action or a claim against that defendant." In the instant case, we consider whether the trial court abused its discretion in dismissing plaintiff's case because plaintiff and her attorneys repeatedly and
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intentionally publicized inadmissible evidence so as to taint the potential jury pool, deny defendants a fair trial, and frustrate the due administration of justice. We conclude that because the trial court possessed the inherent authority to dismiss the action, and because the trial court warned plaintiff and her counsel that dismissal would result if they continued to publicize evidence ruled inadmissible by court order, the trial court did not abuse its discretion in dismissing plaintiff's case. We also consider whether the trial court's dismissal of plaintiff's case because plaintiff intentionally disobeyed its explicit warning to refrain from publicizing information regarding defendant Daniel P. Bennett's excluded conviction violated the First Amendment. The trial court's limitation on the speech of plaintiff and her counsel was a narrow and necessary limitation aimed at protecting potential jurors from prejudice. See Gentile v State Bar of Nevada, 501 US 1030; 111 S Ct 2720; 115 L Ed 2d 888 (1991). The trial court's narrow restriction on speech did not offend the First Amendment. The Court of Appeals novel requirement that dismissal is improper unless the jury pool was actually tainted conflicts with the substantial likelihood of prejudice test of Gentile. Moreover, "actual taint" is an impossible and unworkable standard, especially where nearly three years have passed since the incidents occurred. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court's order dismissing plaintiff's complaint.

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I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Plaintiff Justine Maldonado, an employee of defendant Ford Motor Company, filed suit against Ford, alleging that a Ford supervisor, Daniel Bennett, sexually harassed her in violation of the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq.1 Ford (hereafter defendant) moved in limine to exclude evidence of Bennett's 1995 indecent exposure conviction. Judge Kathleen Macdonald, the original judge assigned to the case, granted defendant's motion and entered an order on February 16, 2001, excluding evidence of Bennett's prior conviction in this case and in another action brought against Bennett, Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851 (2005).2 Plaintiff thereafter sought leave to appeal

We have previously considered other actions in which Daniel Bennett was accused of sexual harassment, Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851 (2005), and McClements v Ford Motor Co, 473 Mich 373; 702 NW2d 166 (2005), mod 474 Mich 1201 (2005). In the Elezovic case, Judge Macdonald also issued an order directing that witnesses be instructed that reference to Bennett's excluded conviction or any other excluded evidence would be considered a contempt of court, and would result in sanctions, including compensation to the court in the case of a mistrial. All the witnesses in that case, including plaintiff Justine Maldonado, signed statements indicating that they had been advised of the court's ruling regarding inadmissible evidence, that they were not to mention any excluded evidence, and that they understood that sanctions would result from mentioning any excluded evidence. As Justice Cavanagh notes, Judge Macdonald stated, upon entering the order of exclusion, that she might reconsider her decision to exclude the evidence during the course of the trial if need be. Justice Cavanagh, however, erroneously relies on this statement to conclude that plaintiff and her counsel were not precluded from "ever mentioning the indecent exposure conviction in public again . . . ." Post at 5 (emphasis omitted). Judge Macdonald's order remained in (continued . . .)
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to the Court of Appeals and this Court regarding Judge Macdonald's decision to exclude Bennett's prior conviction. denied plaintiff's application.3 On September 11, 2001, less than a month before a settlement conference scheduled for October 3, 2001, and shortly after a three-week trial resulting in a directed verdict for defendants in the Elezovic case, plaintiff's counsel issued a press release on firm letterhead that referred to Bennett's indecent exposure conviction, Judge Macdonald's exclusion of that conviction as evidence, and the impending trial in this case.4 A series of news broadcasts and print media Both the Court of Appeals and this Court

publications followed, replete with references to Bennett's prior conviction.5
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(. . . continued)
effect throughout this case. As such, plaintiff and her counsel were bound by the
order.

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465 Mich 971 (2002).

Justice Weaver claims that plaintiff only, and not her counsel, made public statements about the excluded conviction after Judge Macdonald entered the order of exclusion. The September 11 press release, however, which referred to the excluded conviction, was issued by plaintiff's counsel after the order of exclusion was entered. 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, (continued . . .)
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On November 9, 2001, Bennett's indecent exposure conviction was expunged in district court proceedings. By order dated January 11, 2002, Judge Macdonald established a trial date of July 8, 2002. In February 2002, Judge Macdonald was assigned to the family division of the circuit court. Consequently, this case was reassigned by lot to Judge William Giovan. On May 17, 2002, Judge Giovan held a hearing regarding the

admissibility of propensity evidence not currently at issue. Plaintiff's counsel invited the media to this hearing. Despite Judge Giovan's order closing the

hearing to the media, plaintiff's counsel directed the media to wait outside until the hearing concluded to discuss details regarding the hearing. Immediately following the hearing, Judge Giovan met with all counsel to discuss plaintiff's counsel's continued public references to Bennett's prior conviction despite Judge Macdonald's previous court order and the expungement of the conviction. Bennett's counsel pointed out that plaintiff's counsel's behavior
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(. . . continued)
referencing the excluded propensity evidence; and (7) an article in the Oakland
Press, October 11, 2001, referencing the excluded conviction.
Justice Weaver contends that we assert that plaintiff's counsel referred to the excluded conviction in these publications. We assert no such thing. Rather, we merely state that these publications stem from plaintiff's counsel's September 11, 2001, press release. In other words, it was plaintiff's counsel's press release that prompted the mass of publications. Plaintiff's counsel's press release was designed to draw media attention to the excluded conviction and, as shown above, indeed accomplished its goal.

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apparently violated MCL 780.623(5),6 which criminalizes the divulgence, use, or publication of information regarding an expunged conviction. Plaintiff's counsel responded by stating that "it was worth the risk" to continue to publicize Bennett's expunged conviction.7 Judge Giovan declined to order plaintiff's counsel to obey MCL 780.623(5) because he considered it redundant to order an attorney to follow the law.8 Despite Judge Giovan's expression of confidence that counsel would follow the law, plaintiff's counsel left the courtroom and met with the waiting media. This
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The expungement statute states:

Except as provided in subsection (2), a person, other than the applicant, who knows or should have known that a conviction was set aside under this section and who divulges, uses, or publishes information concerning a conviction set aside under this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both. [MCL 780.623(5).] Plaintiff's counsel's comments at this meeting also demonstrate that plaintiff's counsel continued to make public references to the excluded evidence despite the court order, contrary to Justice Weaver's contention. Justice Cavanagh mischaracterizes Judge Giovan's refusal to unnecessarily order an attorney to follow the law as a refusal to require the parties to refrain from referencing the excluded evidence. Justice Cavanagh's mischaracterization that "the trial court never thought it issued an order" in this case is preposterous. Post at 17. While Judge Giovan did not specifically enter a gag order, he did, on numerous occasions, direct the parties to abide by Judge Macdonald's order of exclusion, he subsequently denied plaintiff's motion to dissolve the order, and he orally warned the parties that dismissal would result for failure to abide by the order. Moreover, Justice Cavanagh's mischaracterization of the lower court transcript is rebutted by plaintiff's own comment, "If we don't act the way he [Judge Giovan] wants it, the way he sees fit, then he'll dismiss my case with prejudice."
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meeting resulted in extensive television news and press coverage, some of which again referred to Bennett's expunged conviction and the possible exclusion of the propensity evidence.9 Shortly thereafter, plaintiff's counsel again discussed this case at a May 28 public meeting and a June 1, 2002, rally in Ann Arbor sponsored by BAMN (Coalition to Defend Affirmative Action, Integration & Immigrant Rights and Fight for Equality by any Means Necessary).10 Plaintiff subsequently moved to dissolve Judge Macdonald's order excluding Bennett's prior conviction from evidence. On June 13 and 21, 2002, Judge Giovan heard the motion. During that hearing, plaintiff's counsel

mentioned that an article had been published in the June 12-18, 2002, issue of the Metro-Times, a free weekly publication readily available in the courthouse where jury selection was imminent. The article appeared on the front page of the

The following is a list of the publications stemming from plaintiff's counsel's May 17, 2002, meeting with the media, some of which also referred to evidence that had been excluded before trial: (1) a WDIV news broadcast, May 17, 2002, referencing the excluded propensity evidence; (2) a WXYZ news broadcast, May 17, 2002, also referencing the excluded propensity evidence; and (3) The Associated Press local wire story, May 17, 2002, referencing the expunged conviction. Again, contrary to Justice Weaver's contention, we do not assert that plaintiff's counsel actually made references to the excluded evidence in these publications. Rather, we assert that these publications stem from plaintiff's counsel's meeting with the media. Plaintiff's counsel, George Washington, Miranda Massie, and Jodi Masley, are all members of the BAMN organization.
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newspaper and referenced Bennett's expunged conviction. This article prompted the following colloquy: The Court: But, you know, since you mentioned the article, where's this coming from? I thought that there is a prohibition against counsel speaking to--making public statements designed to affect trial. Ms. Hardy [defense counsel]: There certainly is. There's an ethics rule which prohibits counsel from intentionally trying to taint a jury pool by making the public aware of excluded evidence, which is exactly what's been occurring for quite some time. The Court: Is counsel being quoted in this? Mr. Washington [plaintiff's counsel]: I think counsel on both sides. Ford was not, but Mr. Morgan and Ms. Massie and I were both quoted, all quoted. The Court: I'm not sure--well-- Ms. Hardy: It was initiated, without a doubt, and Mr. Washington will not dispute this, by Mr. Washington, as all the press has been initiated by his office, and the constant publicity is one issue, but the really serious issue is the effort by Mr. Washington to make sure that the press continues to report evidence or information concerning this expunged conviction so that some way, somehow, irrespective of this Court's ruling--[11]

Although the article contained quotations from both plaintiff's counsel and defense counsel, defendant claimed that plaintiff's attorney provided the reporter with the extensive information in the article regarding Bennett's excluded conviction. Plaintiff did not deny this allegation. Justice Cavanagh contends that because Bennett's counsel, on two occasions, referred publicly to Bennett's excluded conviction, plaintiff should not be punished for behaving as defense counsel did. We acknowledge that Bennett's counsel publicly referred to Bennett's excluded conviction. We disagree, however, that defense counsel's behavior mirrored that of plaintiff and her counsel. Bennett's counsel's limited references to the excluded evidence were (continued . . .)
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The Court: I'm not making any decisions about this, but I'm going to tell you one thing. If I ever reach the conclusion that somebody is violating that ethical obligation and causing some difficulty in our getting a fair jury, I will dismiss the case with prejudice, or, and I should say, on the other side, grant a default judgment. I just want everyone to know that. And then whatever counsel is involved can answer to their client. [Emphasis added.]

The court denied the motion to dissolve Judge Macdonald's previous order of exclusion. Three days later, on June 24, 2002, plaintiff was deposed, at which time she admitted that she had disclosed facts regarding Bennett's expunged conviction despite the trial court's order disallowing such evidence. The following colloquy took place: [Defense counsel]: If you can give me a ballpark figure, how many times since you found out about the expungement have you told other people about the fact that Mr. Bennett had this conviction that was later expunged? [Plaintiff's counsel]: You mean at people, period, one person at a time? [Defense counsel]: Any individual, whetherit's groups, how many times has she gone out and publicized it, divulged it. [Plaintiff]: I have no idea. It's been a lot.
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(. . . continued) prompted by plaintiff and her counsel. Defense counsel's statements were made in an attempt to minimize the damage caused by plaintiff's and her counsel's numerous public references to the excluded evidence. Unlike plaintiff's and her counsel's public comments regarding the excluded evidence, defense counsel's comments were not intended to taint the potential jury pool and cause prejudice to plaintiff.

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Q: A: Q: A: Q: A:

Over 100? I don't know. Over ten? Oh, definitely over ten, possibly over 100. Okay. If I could get it out on the Internet, I would put it out on the Internet.

Moreover, plaintiff admitted during her deposition on June 24, 2002, that she would continue to disclose facts regarding Bennett's expunged conviction. She stated: A: I'm aware that you're whining and crying because I'm talking about it all over town, yes, I am aware of that. I won't shut up about it. It's the truth. You can expunge it, but it's the truth, and I'm going to tell it, and you know what? I will tell anybody that will listen because this man is a menace and he must be stopped, and you know it and you know it [sic]. But you guys want to protect him, that's fine, I'm not. I don't have to protect Mr. Bennett. So you've been talking about it-- To anyone. --any chance you get, to anyone-- That's Right. --even though-even since you became aware that it was expunged? Yes. Absolutely.
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Q: A: Q: A: Q:

A:

On June 26, 2002, two days after the deposition, plaintiff and certain of her counsel participated in a "Justice for Justine Committee" demonstration outside Ford headquarters. During the demonstration, participants distributed leaflets to the public containing information regarding Bennett's expunged conviction and evidence regarding Bennett's alleged behavior toward other female Ford employees that the trial court had ruled inadmissible. The leaflet also stated that Judge Giovan "is in Ford's pocket" and "is trying to keep the truth out of the courtroom." Also on this day, a television interview was broadcast on WDIV Channel 4, in which plaintiff stated: If we don't act the way he [Judge Giovan] wants it, the way he sees fit, then he'll dismiss my case with prejudice. And what he doesn't know is, it doesn't bother me, because I'm not going to quit fighting against sexual harassment.

A demonstration similar to that held on June 26, 2002, was held the following day at the Ford Wixom plant, at which a similar leaflet was distributed.12 On June 28, 2002, defendants moved to dismiss plaintiff's suit on the basis that plaintiff and her counsel engaged in improper pretrial publicity aimed at

The following publications stemmed from the June 26 and 27 demonstrations: (1) a WDIV news broadcast, June 26, 2002, showing picketers holding signs stating, "Ford, stop buying judges"; (2) a Click on Detroit, Channel 4 website article, June 26, 2002, referencing the exclusion of the propensity evidence; and (3) an article in the Detroit News, June 27, 2002.

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tainting the potential jury pool. On July 1, 2002, plaintiff responded by moving to disqualify Judge Giovan. On July 3, 2002, Judge Giovan heard and denied this motion. The same day, plaintiff's counsel, Miranda Massie, appeared in a

television interview broadcast on WDIV, Channel 4. She stated: Metro Detroit has a company town feeling, and it's hard to get a fair hearing from any of these judges when you're going against the Ford Motor Company. They'll stop at nothing to maintain the culture of abuse that exists in those plants, and we've found it hard to get unbiased judicial rulings in these cases.[13]

On July 8, 2002, the date on which jury selection was to begin, Judge Timothy Kenny heard plaintiff's appeal of Judge Giovan's denial of the motion for his disqualification and affirmed the denial. Also on July 8, 2002, Judge Giovan heard defendant's motion to dismiss.14 Throughout the hearing, plaintiff and her counsel were discourteous to and uncooperative with the court. Specifically, in response to the court's question, "Are you a member of the `Justice for Justine' committee?" plaintiff's counsel, Jodi Masley, responded by stating: Nobody's ever asked me that in my life. I--you know what. I fully support the "Justice for Justine", you know, committee. They have every right to do everything they [want]. And did I participate

As a result of this news broadcast, the following publications were released: (1) a Click on Detroit, Channel 4 website article, July 3, 2002, referencing plaintiff's and her counsel's belief that Judge Giovan was biased and (2) a Channel 50 news broadcast, July 3, 2002, in which plaintiff stated that money cannot buy justice. Also on this day, an article was published on the Click on Detroit, Channel 4 website concerning Judge Giovan's alleged bias.
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in a demonstration that was called by the "Justice for Justine" committee, I did.

Judge Giovan attempted to respond to Ms. Masley's comment, but she interrupted him, stating, "I mean, have I or have I ever been a member of the Communist Party, is that what this is?" Moreover, in response to Judge Giovan's inquiry regarding whether members of the "Justice for Justine" committee were present in the court, Ms. Masley stated: Have you guys even ever heard of the phrase "Freedom of association . . . ?" * * * I have no idea. Do they need to know--identify their political affiliations . . . ? * * * (Interposing) Who did you guys vote for in the last judicial election?

The hearing continued into the following day. At the conclusion of the two-day hearing, plaintiff requested permission to file a supplemental brief, which Judge Giovan granted. On August 21, 2002, Judge Giovan issued an opinion and order dismissing plaintiff's case with prejudice, concluding that plaintiff and her counsel had

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engaged in premeditated misconduct designed to tamper with the administration of justice and that no lesser sanction would deter plaintiff or her counsel.15 The Court of Appeals, affirmed in part, reversed in part, and acknowledged the trial court's authority to dismiss plaintiff's complaint, but remanded the case to the trial court to hold an evidentiary hearing to determine whether plaintiff's and her counsel's comments actually prejudiced the jury pool.16

Justice Weaver contends that Judge Giovan improperly attributed responsibility for plaintiff's improper references to plaintiff's counsel. As these facts clearly demonstrate, however, Judge Giovan properly determined that both plaintiff and her counsel engaged in behavior designed to taint the potential jury pool. Justice Weaver further contends that plaintiff was not restricted by any order or court rule from making repeated public references to Bennett's prior conviction. While we disagree with the contention that no order or court rule barred plaintiff from making pubic references to the excluded evidence, we reiterate that, whether a court order existed or whether a court rule applied, plaintiff was not free to repeatedly publicize excluded evidence, especially with the trial impending. The only conclusion that can logically be drawn from plaintiff's repeated references to the excluded conviction is that plaintiff was improperly attempting to admit the excluded evidence by means of the mass media. Consequentially, Judge Giovan chose a principled option within his authority in dismissing plaintiff's case in order to protect the administration of justice. Banta, supra at 368; Cummings v Wayne Co, 210 Mich App 249, 252; 533 NW2d 13 (1995), citing Buchanan Home & Auto Supply Co v Firestone Tire & Rubber Co, 544 F Supp 242, 244-245 ( D SC, 1981). Unpublished opinion per curiam of the Court of Appeals, issued April 22, 2004 (Docket No. 243763).
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Defendant sought leave to appeal to this Court. We directed the clerk to schedule oral argument on whether to grant the application or to take other peremptory action.17 II. STANDARD OF REVIEW This case requires us to determine whether the Court of Appeals erred in reversing the trial court's dismissal of this case. Trial courts possess the inherent authority to sanction litigants and their counsel, including the right to dismiss an action. Banta, supra at 368. "An exercise of the court's `inherent power' may be disturbed only upon a finding that there has been a clear abuse of discretion." Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997). A trial court's dismissal of a case for failure to comply with the court's orders is also reviewed for an abuse of discretion. Thorne v Carter, 149 Mich App 90, 93; 385 NW2d 738 (1986); MCR 2.504(B)(1). In People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003), this Court noted that an abuse of discretion standard must be one that is more deferential than review de novo, but less deferential than the standard set forth in Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959). This Court stated that "an abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome." Babcock, supra at 269. The Babcock Court

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471 Mich 940 (2004).

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further noted that "[w]hen the trial court selects one of these principled outcomes, the trial court has not abused its discretion and, thus, it is proper for the reviewing court to defer to the trial court's judgment." Id. While Babcock dealt with a criminal sentencing issue, we prefer the articulation of the abuse of discretion standard in Babcock to the Spalding test and, thus, adopt it as the default abuse of discretion standard. Additionally, in cases raising First Amendment issues, an appellate court is obligated to independently review the entire record to ensure that the lower court's judgment "`"does not constitute a forbidden intrusion of the field of free expression."'" Gentile, supra at 1038, quoting Bose Corp v Consumers Union of United States, Inc, 466 US 485, 499; 109 S Ct 1949; 80 L Ed 2d 502 (1984), quoting New York Times Co v Sullivan, 376 US 254, 258; 84 S Ct 710; 11 L Ed 2d 686 (1964). III. ANALYSIS A. Trial Court's Authority to Sanction Litigants for Unethical Behavior As stated above, trial courts possess the inherent authority to sanction litigants and their counsel, including the power to dismiss an action. Banta, supra at 368. "The authority to dismiss a lawsuit for litigant misconduct is a creature of the `clean hands doctrine' and, despite its origins, is applicable to both equitable and legal damages claims." Cummings v Wayne Co, 210 Mich App 249, 252; 533 NW2d 13 (1995), citing Buchanan Home & Auto Supply Co v Firestone Tire & Rubber Co, 544 F Supp 242, 244-245 (D SC, 1981). "The authority is rooted in a
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court's fundamental interest in protecting its own integrity and that of the judicial process." Cummings, supra at 252. "The `clean hands doctrine' applies not only for the protection of the parties but also for the protection of the court." Id., citing Buchanan Home, supra at 244. Moreover, the Michigan Constitution confers on the judicial department all the authority necessary to exercise its powers as a coordinate branch of government. "Const 1963, art 3,

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