Attorney appeals contempt ruling with help from legal community

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PHOTOs COURTESY OF SCOTT MILLARD & FROM 58TH DISTRICT COURT

by Cynthia Price
Legal News

This coming Monday will provide some resolution to a case that has resulted in widespread publicity for a young lawyer from Stanton and a multi-term judge in Hudsonville.

The story is simple: attorney Scott Millard of Miel and Carr was in the 58th District Court in Hudsonville providing representation for a client facing a Minor in Possession (MIP) charge. Judge Kenneth Post asked the young man whether he would be able to pass a drug test, and Millard advised the client that he was not required to answer based on his Fifth Amendment right not to incriminate himself. Post insisted on getting an answer, telling the attorney “be quiet,” “sit down” and that he did not “give a rat’s tail”  whether the client was on bond or not. (Portions of the transcript are at http://www.woodtv.com/dpp/news/local/ottawa_county/Contempt-of-court-judge-vs-attorney.)

When Millard stood firm in his advice to the client, Post held him in criminal contempt and sentenced him to jail. Millard spent four hours there, until others in his firm asked 20th Circuit Court Chief Judge Edward Post (no relation to Kenneth Post) for an emergency stay, which he granted.

Millard’s story resulted in newspaper articles and television coverage locally, and blog postings across the nation.

Now Miel and Carr’s Keeley Heath and Joshua Blanchard are pursuing a reversal of the contempt holding. They will give oral arguments on Monday. And they will not be in court alone.
Asserting that such judicial action is a threat to the ability of attorneys throughout Michigan to do their jobs, the Criminal Defense Attorneys of Michigan (CDAM) organization has filed an amicus brief along with the American Civil Liberties Union (ACLU) and the Ottawa County Bar Association.

In their Brief on Appeal, Heath and Blanchard stated, citing Maness v Meyers, “The 5th Amendment privilege against self-incrimination would be drained of its meaning if counsel could be penalized for advising his client in good faith to assert it.”

 Continuing, “An attorney cannot be held in contempt for merely asserting the interests of his client,” the brief relies on  the 1976 Michigan Court of Appeals decision on In Re Contempt of Sheldon Meizlish, as does the amicus brief.

That brief explains the interest of the amici as follows: “Few judicial missteps threaten the justice system’s integrity more than a judge’s misuse of the power of contempt to punish an attorney for zealously asserting his client’s constitutional rights.  It is well-understood that an attorney’s ability vigorously to defend his client’s interests is essential to the fair administration of justice. It is for this reason that an attorney must be free to strenuously advocate on behalf of his client, with due respect to the court, and without fear of retribution.
“...Here, in an outrageous display of judicial power, Judge Kenneth Post jailed Mr. Scott Millard not only for persistently, but politely asserting his client’s clearly applicable Fifth Amendment rights, but also for refusing to abandon his duty to advocate zealously on behalf of his future clients whose cases do not yet exist.”

The amicus brief further contends that  the criminal contempt conviction will have “an inevitable ‘chilling effect’ on the constitutional right to effective representation.”

The U.S. Supreme Court appears to have agreed with that in the past, stating, “...it is ... essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their client‘s cases.  An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice” (In re McConnell, 1962).

The 600-member CDAM, which exists to represent the interest of criminal defense attorneys around the state, includes in its mission to “guard against erosion of the rights and privileges guaranteed by the United States and Michigan Constitutions and laws.” In an official statement, CDAM’s Amicus Committee Chair and Ann Arbor attorney John Minock says, “As an organization of defense attorneys, this judicial misconduct goes to the core of our mission. Forbidding an attorney to advise a client to invoke her or his rights guaranteed by the Constitution undermines the justice system and makes it impossible for defense attorneys to do their job.”

The Ottawa County Bar Association’s participation resulted from the fact it “has a strong interest in ensuring the fair administration of justice, including the respectful treatment by, and of, the bench, the bar, and litigants in that process.”  Attorney Kurt Bauer of Holland signed on behalf of the Ottawa County Bar.

ACLU’s local attorney, Miriam Aukerman, adds, “This case highlights the importance of effective criminal defense advocacy. Defense attorneys should not go to jail simply for defending the rights of their clients.”

She notes, “Procedurally, this is like any other appeal in a criminal case. And the prosecutor can elect to defend the contempt conviction.”

However, Keeley Heath says that they have not received a response brief, which she takes as confirmation of the unofficial response from the Ottawa County Prosecutor’s office staff at the beginning of the case that they were not going to get involved. She surmises that the judge may issue a decision right after oral arguments on Monday.

Millard, a Stanton native who graduated from Central Montcalm High School and Central Michigan University before receiving a scholarship to Barry University Dwayne O. Andreas School of Law in Orlando, Fla. (who also interned for t0he Chief Judge Suzanne Hoseth-Kreeger, of the Montcalm/Ionia County 8th Circuit Court), was filling in for Heath at the proceedings which resulted in his contempt citation.

Heath, still concerned about her client, says, “The underlying case with the MIP is still in limbo.”

About Monday’s considerations, Heath comments, “What [Judge Post] did was a pretty serious thing —he put a young attorney’s license in jeopardy by giving him a criminal conviction. Listening to the transcripts, we really think that Scott just did everything exactly the way that he should.”

She says that, pending receiving some additional transcripts, the firm intends to file a Writ of Superintending Control concerning some of Judge Kenneth Post’s practices in MIP cases. The firm is in the process of gathering evidence for that motion.

Post had already received extensive news coverage from WOOD-TV for his refusal to order diversion programs in first-time alcohol-use convictions. The 2008 story unflatteringly referred to him as “The MIP Hanging Judge.”

In addition, Heath’s firm has filed a complaint with the Judicial Tenure Commission. She says that if the commission declines to pursue the complaint publicly, there is nothing requiring them to tell the filers why.

“I think it is a pretty egregious thing that the judge did,” Heath says, “so I hope the JTC takes action on it.”

Post did not return calls asking for his comments.