Every now and then I read an employment case that gives me a Homer Simpson moment -- I want to slap my forehead and go "D'Oh!" The Michigan Supreme Court issued a recent opinion in which it upheld the highly unusual sanction of complete dismissal of a plaintiff's case because the plaintiff and her attorneys decided they didn't have to listen to the trial judge on the issue of pretrial publicity.
The plaintiff, a Ford employee, sued Ford alleging that a supervisor sexually harassed her in violation of state law. This guy must have been some supervisor, because he was the subject of two other Michigan Supreme Court opinions on sexual harassment, as well. Hint to employers--when your management team begins appearing in Supreme Court opinions, it's time to call the headhunter.
In any event, the supervisor had a 1995 conviction for indecent exposure. The trial court specifically excluded the conviction from evidence. The plaintiff appealed the ruling and the state court of appeals and Supreme Court denied the plaintiff's application.
Shortly after a directed verdict for Ford in one of the other cases involving the supervisor, the plaintiff's lawyer issued a press release on firm letterhead referring to the indecent exposure conviction, the court's exclusion of the conviction as evidence, and her pending trial. Seeing double-barreled sensationalism--sexual harassment involving a Ford supervisor coupled with sexual perversity--the news media embraced the press release with open arms and a series of articles, TV and radio broadcasts followed.
The full effect of this, of course, was to taint any available jury pool with the knowledge that the supervisor had this conviction. Unfortunately, the indecent exposure conviction was expunged shortly after plaintiff's attempt to poison the jury pool, which meant the evidence was really inadmissible.
Nevertheless, plaintiff and her attorneys continued to beat the media drum about the conviction. When the court held a hearing to deal with the matter, and advised the plaintiff that her conduct violated a state law that criminalized publication of an expunged conviction, the plaintiff simply said it was worth the risk to continue to publicize the matter. To prove it, her lawyers walked out of the courtroom into a press conference (which they set up prior to the hearing) and again made public comments about the conviction and its exclusion at trial.
Not content with this, plaintiff and her lawyers also referenced the excluded evidence in a free weekly publication that was readily available in the courthouse. At a rally they convened outside two Ford plants, the lawyers distributed leaflets to the crowd containing information about the expunged conviction, evidence about the supervisor's behavior towards other Ford employees that had also been ruled inadmissible, and a statement that the trial judge was "in Ford's pocket" and was trying to "keep the truth out of the courtroom."
At the end of all this, the judge dismissed the case with prejudice, determining that the plaintiff and her counsel engaged in premeditated misconduct designed to tamper with the administration of justice and that no lesser sanction would deter them. D'Oh!
The Supreme Court of Michigan upheld the judge's decision. The Court noted that despite the trial judge's explicit warning to plaintiff and her attorneys that he would sanction continued publication of the excluded evidence to potential jury pool members, they continued to do so. The Court stated that a trial judge had an obligation to control and manage the integrity of the judicial process and of the court itself.
This apparently comes as a surprise to nobody but the plaintiff and her attorneys, and perhaps the two dissenting judges. When one party repeatedly violates Michigan court rules, Michigan state law, and Michigan rules for attorney conduct, in an effort to taint the jury pool, there doesn't seem to be much of an option for the trial court except to kill the case.
For those of you worried about a small detail called the First Amendment, the U.S. Supreme Court has categorically held that free speech rights do not extend to speech designed or that has a substantial likelihood to materially prejudice judicial proceedings. That's what happened in this case. What I find even more interesting is the fact that the plaintiff's attorneys felt they could bad mouth state court judges in the press repeatedly with no effect on their pending litigation. Righteous indignation or not, this kind of conduct is clearly sanctionable because it strikes at the heart of the judicial process. I'm just surprised the Supreme Court didn't order suspension or disbarment for the attorneys involved.