No Sanctions, But Stern Words for Worthy

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.

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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