No Sanctions, But Stern Words for Worthy

Wayne County prosecutor won't be sanctioned for seeking recusal of 22nd circuit court judge Tim Connors prior to Nov. 6 election

Donald Shelton, chief judge of Washtenaw County’s 22nd Circuit Court, has declined to sanction Wayne County prosecutor Kym Worthy in connection with a motion she filed last year in the Neal v. Michigan Dept. of Corrections case.

Washtenaw County Courthouse at Main and Huron streets in downtown Ann Arbor.

Washtenaw County Courthouse at Main and Huron streets in downtown Ann Arbor.

However, in the course of oral arguments heard this week, Shelton appeared to indicate basic agreement with the points of the presentation given by Dick Soble, one of the plaintiff’s attorneys in the case, who had asked for sanctions against Worthy. The Wayne County prosecutor is involved in the case as an intervenor, and was represented during oral arguments by Donn Fresard, the Wayne County prosecutor’s office chief of staff. Sanctions had also been sought against Fresard.

Soble and other opposing counsel had asked for sanctions against the Wayne County prosecutors because of their motion for recusal of judge Timothy Connors from the case – a motion filed on Nov. 1, 2012, five days before the Nov. 6 election. Soble contended that the motion had no legal merit, and instead had political motives. The incumbent Connors was opposed in the race by Michael Woodyard, who works as an assistant prosecuting attorney in Worthy’s office. Connors prevailed in that election.

The oral arguments and Shelton’s ruling from the bench came on Jan. 16, 2013 at the Washtenaw County courthouse at Huron and Main in downtown Ann Arbor.

Despite his decision not to sanction the Wayne County prosecutors, Shelton had some sharp words for their actions. He indicated that if similar filings were to come before him again in connection with the case, he would not hesitate to impose sanctions.

The case has previously been handled by Connors, who had denied the motion for his own recusal in late November. Yet it’s Shelton, not Connors, who will now be handling the rest of the Neal v. MDOC case. It was reassigned to Shelton as the result of a court reorganization to accommodate the addition of a new judge, Carol Kuhnke. She was elected on Nov. 6 in a race against Jim Fink, and replaces the retiring judge Melinda Morris on the 22nd circuit court. Because of the reassignments, Shelton said at the Jan. 16 hearing, “This case fell in my big lap.”

Shelton’s Ruling

After hearing oral arguments, Shelton began his remarks by saying that he found the motion to recuse Connors – in its content and especially in its timing – to fit a term he described as deriving from his own dated vernacular: “smeggy.” He continued by saying that he could hold an evidentiary hearing to determine whether the motive in filing the motion was an attempt to influence the outcome of the election between Connors and Woodyard. However, he was “choosing” not to do that, he said. He also said he was “choosing” not to begin his assignment to “whatever is left of this case” by sanctioning the attorneys.

In his choice of the phrase “whatever is left of this case,” Shelton seemed in part to be echoing an aspect of Soble’s oral arguments for sanctions. By way of a background sketch, the Neal v. MDOC case dates from the late 1990s. It involved women prisoners held by the Michigan Dept. of Corrections who were found to have been subjected to abuse by prison guards. They were awarded a settlement of $100 million in installments over a six-year period, paid into an escrow account and then distributed to the attorneys and class members according to an allocation plan.

The settlement prompted the involvement of the Wayne County prosecutor’s office, which had an interest in ensuring that the victims of crimes committed by the women prisoners were paid any restitution they might have been owed – from the settlement of the Neal v. MDOC case. Soble argued that the agreement for the distribution of settlement had been signed by parties to the case on Oct. 31, 2012 – just one day before the motion for recusal was filed – and that this agreement essentially excluded Connors from future involvement in the process of distribution. With nothing left for Connors to rule on in the case, Soble’s argument went, why was recusal necessary?

The motion for recusal claimed that some remarks Connors from proceedings on June 10, 2011 had lumped the prosecutor’s office in with the MDOC as part of the same government that had abused the prisoners, and thus showed bias. An excerpt from Connors’ remarks: “The record had established that the class action involved individuals who were victims of sexual abuse by the government. Three of the — all of the intervenors are a portion of the government who committed, on behalf of the government, part of that same entity.” But at the time, no party had objected to that statement as reflective of a bias that required recusal, Soble argued.

If it was too late now to use a June 10, 2011 statement by Connors as the basis for a motion for recusal, then the Nov. 1, 2012 filing of that motion was unnecessarily early, according to Soble. He sought to undercut Worthy’s claim that the motion for recusal had to be filed before the Nov. 6 election – by questioning whether an Oct. 21 visit to the Secretary of State’s campaign contribution website by the Wayne County prosecutor could sensibly be taken as the start of a 14-day window for filing such a motion. Soble pointed out that no campaign contributions were listed on that website until Oct. 25, and a 14-day window would have left room to file after Nov. 6, the date of the election.

Campaign Contributions in Judicial Race

The campaign contributions at issue were Soble’s and those of other opposing counsel, who had contributed the maximum under the law to Connors’ campaign – $3,400. But Soble cited the 2006 Adair v. State Dept. of Education opinion, which concluded: “It is simply impossible for the Supreme Court, as well as most other courts in Michigan, to function if a lawful campaign contribution can constitute a basis for a judge’s disqualification.” Soble called it “outrageous” to contend that Connors could be bought, or that Soble and his co-counsel were a part of the buying.

Soble also pointed to the various choices of words and phrasing in the motion for recusal that had no bearing on the argument for recusal – and concluded they were crafted for a “different audience” than the court. For example, the motion for recusal described “alleged mistreatment” of women prisoners by guards, when the conclusion that the guards had in fact mistreated prisoners was supported by the findings and the settlement in the case. Soble concluded that the Wayne County prosecutor had not so much filed a motion as “filed a press release.”

As Fresard reviewed the claims in the motion before Shelton, Shelton rejected the relevance of the older incidents, telling Fresard that they were long since past, and that the only thing left for Fresard to argue potentially were the campaign contributions. Fresard responded by telling Shelton that he didn’t think the campaign contributions should be considered in a vacuum.

On the question of campaign contributions, which Soble had defended by citing Adair, Fresard attempted to question the relevance of that case by noting the Adair case predated a change in court rules that now allow for a recusal to be based on the appearance of impropriety. [.pdf of original Nov. 1, 2012 filing of motion for recusal]

Based on his remarks in connection with the ruling, Shelton was not moved by Fresard’s arguments and found those of Soble to be persuasive – but chose to exercise discretion in not imposing sanctions.

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  1. By Mark Koroi
    January 17, 2013 at 2:03 pm | permalink

    The important aspect of the ruling is that Timothy Connors has been removed from the remainder of this case. I believe that Shelton’s ruling allowed all sides to save face.

    Kym Worthy basically has what she wants in having the case re-assigned to a new judge and I think that the timing of this “general re-assignment” is maybe just too coincidental – but I believe that Judge Shelton basically gave Fresard and Worthy what they wanted without being offensive to Connors or Soble.

    The “appearance of impropriety” standard of judicial disqualification is a lot easier to prove than he prior actual bias test.

    I thank Donn Fresard and Kym Worthy for bringing the motion and congratulate Judge Shelton for his learned consideration and ruling.

  2. January 17, 2013 at 4:25 pm | permalink

    Sorry, Mark, but the Wayne County lawyers lost it all here – except for actually being sanctioned.

  3. By Mark Koroi
    January 17, 2013 at 10:57 pm | permalink

    @David Cahill:

    The transfer of the case by Shelton mooted the disqualification issue completely – Connors already lost jurisdiction of the case via administrative re-assignment. There was no need for the court even to hear the issue of grounds for disqualification once Shelton noted the transfer to his own court of the case.

    I do agree, however, with Dick Soble that an evidentiary hearing to attempt substantiate some type of plot by the Wayne County Prosecutor’s Office to file the motion for disqualification at a time calculated to embarrass Connors and help a member of that office would be interesting. But I feel it would be laughable to suggest that the Wayne County Prosecutor would engage in such conduct.

    The case is nowhere near over from Prosecutor Kym Worthy’s perspective as she is seeking criminal restitution on behalf of crime victims from prisoner-plaintiffs and their lawsuit proceeds. Timothy Connors had appointed James Fajen as a “special master” to issue a report (despite the fact masters are not allowed in the Michigan state court system under the Michigan Constitution) on restitution matters.

    I wish the Wayne County Prosecutor luck in collecting as much cash as possible for crime victims from these convicts.

  4. January 18, 2013 at 9:42 am | permalink

    The prisoners’ rights suit has been vigorously opposed from the beginning by groups who believe, essentially, that prisoners do not have any rights they are bound to respect. These groups lost the suit, in front of Connors, and still can’t reconcile themselves to the outcome.

    The fact that Judge Shelton agreed to hear the motion for disqualification, even after the case was transferred from Judge Connors in a routine reassignment of cases, shows that Judge Shelton thought the motion had substantial merit. So does his ruling.

    Mark, what’s your legal authority for the proposition that masters are not allowed in the state court system?

  5. By Mark Koroi
    January 18, 2013 at 2:04 pm | permalink

    @David Cahill:

    There are several constitutional provisions that are relevant:

    Article VI, Section Five:

    “The office of master in chancery is prohibited.”

    Also see Article VI, Sections One and Twenty-Seven.

    In Oakland County Prosecutor versus Beckwith, 242 MichApp 579, 619 NW2d 172 (2000) the court struck down the appointment of a special master on state constitutional grounds where a party objected.

  6. By John Dory
    January 19, 2013 at 3:40 pm | permalink

    Several points I would like to make:

    Chief Judge Donald Shelton’s name was prominently displayed as an endorser of Timothy Connors on the Connors’ campaign committee’s website [link] – Shelton should have disclosed this to the parties at the disqualification hearing. Shelton also not only endorsed Margaret Connors, the judge’s spouse, in her 2008 District Court candidacy, but also donated to her campaign committee.

    Secondly, it is clear Judge Shelton wanted to defend the integrity of the circuit court at the expense of Kym Worthy. There was no proof of any attempt by Woodyard’s campaign to get this disqualifcation filed – however Connors’ acceptance of $8,000 in contributions from 6 of 9 attorneys in the Neal case was highly questionable in itself. Virtually all the top donors to Connors’ campaign had high-dollar cases before him.

    The case re-assignment of Neal just days before the disqualification hearing is very interesting. Connors presideed over the case for well over ten years.

    Dick Soble’s name had previously surfaced in a separate case in the same circuit court : Insight on the News article dated July 22, 2002 – “UAW Lawyers Skirt The Rules of Law” by Michael F. Munday [link]

    This Neal litigation was Connors’ “career case” which he boasted of during his re-election campaign. To take it away him as part of a mysterious “case re-assignment” leads one to believe that there is more than meets the eye here.

  7. January 20, 2013 at 4:47 pm | permalink

    All of the circuit judges’ case assignments were shifted around, effective January 1, because of the retirement of Judge Morris and the election of Judge Kuhnke. Judge Connors’ existing civil cases were split 50-50 between Judge Shelton and Judge Brown.

    This process was hardly a mystery to lawyers practicing here in Washtenaw County.

  8. By Mark Koroi
    January 22, 2013 at 7:50 pm | permalink

    @David Cahill:

    Timothy Connors presided over the Neal litigation over ten years and suddenly loses it to a “general case re-assignment” while a highly-publicized motion for disqualification is pending? Sounds a tad suspicious to me.

    David, you should also disclose you were on the Connors re-election committee and have served as legal director of the Ann Arbor ACLU branch (Dick Soble is an outspoken ACLU member as well).

    Kym Worthy has been publicly disparaged before for her previous highly-publicized prosecutions that offend many. It does not surprise me some may be angered for her advocacy of crime victims to receive a fair hearing in their quest for restitution from convicted prisoners.

  9. January 23, 2013 at 2:35 pm | permalink

    Well, Mark, your suspicion is a bit odd. Would you have preferred that Judge Connors *keep* the Neal case while the rest of his docket went to others?

    I supported Judge Connors and was listed as a supporter. Maybe that made me a member of his re-election committee. However, I was not a member of his campaign committee; I didn’t follow his campaign that closely.

    And no, I have never served as legal director of the Ann Arbor ACLU branch.

    Please be more careful in your research.