6th Circuit: Free Speech Sort of Applies to Judges

CINCINNATI (TDB) -- A federal appeals court in Ohio says it is not going to order four Michigan Supreme Court justices to step down from cases involving Geoffrey N. Fieger, a colorful and successful Democratic trial lawyer who once ran for governor in that state and defended Dr. Jack Kevorkian, the physician widely known as "doctor death." In a decision today, a three-judge panel of the 6th Circuit U.S. Court of Appeals said the justices didn't have to recuse themselves from Fieger cases even though they made remarks over the years critical of Fieger, who contends they seem to have it in for him.

Still, the case was not a total victory for judicial free speech and judges who sometimes may want to open their mouths to snipe back at critics. The 6th Circuit told a lower court to review Michigan's judicial recusal rules to see if they open any doors allowing biased judges to oversee future legal proceedings. Fieger was the Democratic nominee for governor of Michigan in 1998, a race he lost, and an advocate for Kevorkian. Fieger argued to a jury that Kevorkian's intentions were never to kill, but to reduce suffering. Kevorkian is in prison for overseeing physician-assisted suicides and has a following who believe it's not improper to help terminally ill people avoid prolonged decline and misery as their days dwindle.

The 6th Circuit in Cincinnati said there was an acrimonious dialogue between Fieger and the four justices -- Maura Corrigan, Clifford W. Taylor, Robert P. Young and Stephen J. Markman -- in two appeals involving his clients, neither pertaining to Kevorkian. The federal appeals court said the rulings went against Fieger and cost him contingent-fee paydays.

The 6th Circuit said its hands were tied about the past but it would allow a challenge of Michigan's judicial rule. It said a trial judge in Ann Arbor should consider whether the rule allows the possibility of future retaliation against the outspoken trial lawyer.

''To that extent, the source of Fieger's alleged injury is not the past state court judgments, it is the purported unconstitutionality of Michigan's recusal rule as applied in future cases. Such a claim is independent of past state court judgments," the 6th Circuit said in an opinion written by U.S. District Judge William S. Stafford Jr., who was temporarily assigned to the Ohio court from his post in northern Florida. (Fieger v. Ferry, No. 05-1295.) Fieger's Website is at www.fiegerlaw.com.