Opinion
ORDER
On order of the Court, the delayed application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
LEVIN, J., states as follows:
I would remand for a Ginther hearing. People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).
Before this appeal was decided, the Court of Appeals denied the defendant's motion for remand for a Ginther hearing and this Court denied the defendant's application for leave to appeal from that order. I stated that "I would remand to the Court of Appeals because the defendant's motion to remand to the trial court was timely and identified an issue sought to be reviewed on appeal, for which a testimonial record must be developed to support the issue." People v. Steegman, 442 Mich. 866, 500 N.W.2d 469 (1993).
After the Court of Appeals affirmed Hugh Hubert Steegman's conviction, his lawyer, an assistant state appellate defender, filed a motion for rehearing. The Court of Appeals denied, and then assessed the lawyer $100 because of the "disrespectful and impertinent tenor of his motion for rehearing."
The order said:
The only language that my law clerk or I can find that could possibly have so aroused the Court of Appeals are the statements that a law clerk "wrote" the opinion and that the law clerk was "badly confused."
The brief stated:
I
The Court of Appeals and this Court would stultify ourselves if we were to deny that at least two-thirds and possibly three-quarters or ninety percent of the opinions are drafted or written by law clerks, or, in the case of Court of Appeals, "central staff attorneys," and that two-thirds and possibly three-quarters or ninety percent of the writing in the opinions is by clerks or central staff. All the per curiam opinions issued by this Court are written by central staff attorneys.
The involvement of law clerks and central staff attorneys in the drafting and writing of opinions is well known. Law clerks and central staff attorneys have the same responsibility and involvement in opinion writing in most every appellate court in the land including the United States Supreme Court.
The involvement of law clerks and central staff attorneys in opinion writing is no secret. If it were a secret, it should not be. Clearly there is nothing disrespectful or impertinent in speaking the truth. The truth is that law clerks generally write the bulk of the opinions.
II
There is an implication in the assistant defender's language that the judges who signed the opinion did not adequately check what was written. I see nothing disrespectful and impertinent in saying a judge or justice must have failed to check what the law clerk wrote because if the law clerk's assertion had been properly checked the error or "confusion" would have been discovered and avoided.
III
The Court of Appeals assessed the $100 fine without notice to the assistant defender. Before acting sua sponte, notice should have been given of the contemplated action, and the assistant defender should have been provided with an opportunity to respond. Acting without notice and providing such an opportunity is the paradigm denial of procedural due process.
If the Court of Appeals acted as it did because the paragraphs referred to in the assistant defender's brief were written by a judge rather than a law clerk, the assistant defender should have been so notified and given an opportunity to withdraw his incorrect suggestion that it was a law clerk rather than a judge who was mistaken and confused.
IV
On occasion this Court receives a "strong" petition for rehearing. This Court has not to my recollection fined the "offending" lawyer. On a scale of one to one hundred, what the assistant defender said is, in comparison to some petitions for rehearing that we have seen, at most a five. The fine is thus at least $95 excessive.
V
Lawyers who vent their spleen in a petition for rehearing do their clients no service. I do not commend the assistant defender for so expressing his displeasure. It is, however, a grave mistake, by our inaction, to encourage the Court of Appeals to censor lawyers who become somewhat carried away, in their motions for rehearing, in the manner in which they express their frustration with what they perceive to be an incorrect reading of the record, an incorrect decision, or inadequate explanation in a judicial opinion.
I would enter an order eliminating the $100 fine.
The Court further orders that appointed counsel for appellant shall pay to the Clerk of this Court within fourteen days of the clerk's certification of this order court costs in the amount of $100 for the disrespectful and impertinent tenor of his motion for rehearing. Such costs are personal to the attorney and shall not be charged back to the county or to the state.
The Court further directs that a copy of this order be furnished to James Neuhard, supervising attorney of the State Appellate Defender's office.
The paragraph responding to the criticism of the "closing argument" in this case demonstrates that the clerk who wrote it was badly confused. The record of this case has nothing to do with the "reasonable probability of succeeding with an intoxication defense." The law precludes such a defense. The question raised is why defense counsel's cryptic closing misdirected the jury from the credibility issue which formed the only legal record basis for a not guilty verdict.