Judicial immunity protects judge who was recorded disparaging lawyers, 6th Circuit says
MAY 30, 2019 | REPUBLISHED BY LIT: MAR 31, 2021
A Michigan state judge caught on a recording disparaging two lawyers has immunity in their suit alleging a conspiracy with opposing counsel, a federal appeals court has ruled.
The 6th U.S. Circuit Court of Appeals at Cincinnati ruled Tuesday that the actions of Judge Paul Hamre did not fit within either of two exceptions to judicial immunity. Hamre, who’s a judge in Van Buren County, announced his retirement from the bench a month after the May 2013 incident.
Hamre made the remarks at the end of a telephone status conference, according to the 6th Circuit opinion. The lawyers for the plaintiffs in a collection action, Donovan and Donald Visser, participated by phone, while the defense lawyers were in chambers with Hamre.
Donovan Visser is Donald Visser’s son, according to an August 2013 story by MLive.com (see this article below on LIT). They represented a company called HLV that was seeking to collect a $600,000 debt from a storage trailer company.
At the end of the conference, one of the lawyers on the phone hung up, making a clicking noise. Hamre and the two defense lawyers in his chambers—Gary Stewart and Kelly Page—apparently thought all the other callers were off the line, Judge John Nalbandian wrote in his opinion for the 6th Circuit.
Two unidentified speakers in chambers used obscenities to describe Donovan and Donald Visser, and Hamre expressed agreement, according to the opinion. According to a later lawsuit filed by HLV, one speaker “called Donald Visser a f- – -ing d- -khead,” and a speaker “called Donovan Visser a f- – -ing d- – -.” Hamre agreed that “his son is even worse,” the suit says.
Hamre also discussed the collection case, telling the defense attorneys that their client did not have to transfer all 600 trailers to the Vissers’ client as called for in an initial settlement agreement that was later amended.
At one point, Hamre’s assistant told the judge that she received a report from HLV detailing the status of the trailers, but Hamre told her to “throw it in the garbage.” Hamre said he intended to tell HLV at an upcoming hearing that he was extending an injunction that favored the defense.
The 6th Circuit decision upholds Hamre’s dismissal from an HLV suit claiming a RICO conspiracy. HLV’s amended suit claimed that Page, Stewart and their law firm conspired with Hamre to violate HLV’s constitutional rights. The suit alleged that the defense lawyers and their firm gave Hamre office space and Florida vacations to influence his decisions, according to the 6th Circuit opinion.
Defendants named in the initial suit had called it “a study in defamation” that “reads less like a pleading filed in federal court than it does poorly written fiction,” according to prior news coverage by MLive.com.
The only defendant who wasn’t dismissed from HLV’s suit was Stewart. Jurors found a conspiracy but awarded only $1 in nominal damages. Jurors did not award punitive damages because they found that Stewart’s conduct was not motivated by evil motive and did not reflect indifference to the plaintiffs’ due process rights.
Lawsuit accuses Van Buren County court officials of abusing power; officials call allegations ‘fiction’
FEB 27, 2014 | REPUBLISHED BY LIT: MAR 31, 2021
PAW PAW, MI – Prosecutors, attorneys and a now-retired judge conspired to derail a business owner’s lawsuit in Van Buren County, where certain members of the legal system have run the courts like a criminal enterprise, a federal lawsuit alleges.
Defendants named in the lawsuit say it is meritless and have moved to have it dismissed. In responses filed in court documents, they call it “a study in defamation” that “reads less like a pleading filed in federal court than it does poorly written fiction.”
“This case is about several members of an esteemed profession who consistently and unabashedly abuse their badges of authority,” Grand Rapids attorney Jordan C. Hoyer said in a 51-page lawsuit filed on behalf of Robert Baker. “Defendants … used their powers and procedures as a weapon to the detriment of many people, including, but not limited to, the plaintiffs.”
Baker’s lawsuit, filed Dec. 23 in U.S. District Court in Grand Rapids, names as defendants attorneys Kelly Page and Gary Stewart, retired Van Buren County Circuit Court Judge Paul E. Hamre, County Prosecutor Michael Bedford, Assistant Prosecutor Michael McKay and Hamre’s former secretary, Peggy Grote, as well as Van Buren County and the Village of Paw Paw.
At the roots of the federal action by Baker, who owns HLV, LLC, is a separate lawsuit he filed in 2011 in Van Buren County Circuit Court seeking $694,000 of an unpaid loan from William Engel, a Kalamazoo resident who owns ELC Leasing.
In October 2012, Hamre signed an order requiring Engel to turn over trailers and shipping containers from his business to Baker’s company as payment on the loan.
Engel hired Page and Stewart to represent him, then in March 2013, Hamre reviewed a motion and affidavit filed by the two Paw Paw attorneys and signed a temporary restraining order that prevented Baker from seizing the trailers.
In May, Page and Stewart, as well as Baker’s attorneys, Donald and Donovan Visser, took part in a conference with Hamre to discuss a resolution and how the court planned to have Engel pay back the money owed to Baker. Page and Stewart were in Hamre’s office with the judge, while the Vissers joined in by phone.
As the conference was wrapping up, the attorneys and judge agreed to meet for a motion hearing the following Monday and Hamre concluded the call, according to a recording. Within seconds, with the phone line with the Vissers still open, a voice could be heard calling Donald Visser a derogatory name. Another voice chimed in calling Donovan Visser a nearly identical derogatory name.
As the recording continued, Hamre could be heard discussing the lawsuit with Page and Stewart. After they left his office, the judge could be heard speaking to Grote, who informed him that he had received a fax from the Vissers’ office during the phone conference.
“Throw it in the garbage,” Hamre told her. “I don’t want it. I don’t need it.”
Baker filed a grievance against Hamre with the Michigan Judicial Tenure Commission, accusing the judge of having inappropriate conversations with Engel’s attorneys outside of the presence of his attorneys. The commission later dismissed the complaint following Hamre’s retirement last summer.
Baker also filed grievances against Page and Stewart with the Attorney Grievance Commission. Any action taken by the body is made public through the state’s Attorney Disciplinary Board, which as of this month had not taken against the two Paw Paw attorneys, according to the board’s website.
The State of the Judiciary 2021
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— LawsInTexas (@lawsintexasusa) March 25, 2021
Before his retirement, Hamre recused himself from the civil case involving Baker and Engel, as did other judges Van Buren County. It was reassigned to Cass County Circuit Judge Michael Dodge, who in July reversed Hamre’s decision to grant the temporary restraining order and reinstated the original order from October 2012 for Engel to make good on his debt.
In the federal lawsuit filed in December, Baker and his attorney charge that the conduct of Hamre, Page and Stewart is part of an ongoing pattern in Van Buren County that equates to a criminal enterprise that violates the federal Racketeer Influenced and Corrupt Organizations Act (RICO).
The lawsuit also alleges that Page and Stewart bribed Bedford, Hamre and McKay “in order to influence their decisions in and relating to” Baker’s 2011 lawsuit. It alleges further that Stewart committed wire and mail fraud, and that Bedford, Hamre, McKay, Page and Stewart schemed to violate Baker’s constitutional rights.
Among specific allegations contained in the federal lawsuit are:
That Hamre’s signature was forged on a March 22, 2013 order that extended the temporary restraining order preventing Baker from seizing any of Engel’s trailers.
In October, when Baker and his attorney sent someone to take photos of the alleged forged document, it had “conspicuously been removed from the court file.”
Page later influenced Bedford to press charges of assault and battery and trespassing against Baker and Donovan Visser following an April 9 confrontation at Engel’s business, during which Visser and Baker were trying to review the company’s records. The charges came despite a sheriff’s deputy’s conclusion that nothing criminal had occurred. The case against Baker was later dismissed. The trespassing charge against Visser was dismissed by directed verdict in December, while the assault charge resulted in a hung jury.
Hamre and Bedford worked in conjunction with Page and Stewart in exchange for bribes, which included office space for Hamre’s law practice when he retired and hunting and fishing trips for Bedford, paid for by Page.
That Grote, in regard to the conversation in May between Hamre, Page and Stewart, committed perjury when she stated in a sworn affidavit that “after the phone conference was over I heard no further conversation about the case or conversation discussing anyone’s social plans.”
That Page and Stewart, who work out of the same law office in Paw Paw, have practiced law in the Van Buren County “with inherent and acute conflicts of interest.”
Among the alleged conflicts of interest cited in the lawsuit are that Page, who is legal counsel for the village of Paw Paw, has also “represented or attempted to represent defendants in state criminal actions whose interest are in direct conflict with the entities he represents and the police officers he is charged with defending.”
“Further, defendants Page and Stewart often use their loose, and apparently amorphous, professional relationship with each other to represent both sides of the same case,” Baker’s lawsuit alleges.
The lawsuit says officials in Almena Township, which Page also represented, hired outside counsel in August after learning that Page was acting as attorney for Engel’s company and that someone “within the township had mysteriously, and without explanation, reduced ELC’s property taxes by 96%.”
“Out of the 30 tax appeals that year, only four others were approved and none were lowered by more than 20%,” the lawsuit states. “Further, when the township began its investigation, it immediately discovered that the ELC property tax file had gone missing.”
U.S. District Judge Paul L. Maloney, who was assigned to the lawsuit, gave the defendants until Friday to file responses to Baker’s complaint. As of Wednesday, only Page, who is being represented by Southfield attorney Colleen H. Burke, had not filed an answer.
Attorneys for Hamre, Grote and Stewart, as well as Paw Paw and Van Buren County officials, all filed motions to have the case dismissed in lieu of filing answers to the complaint.
Bedford and McKay, meanwhile, both filed answers to the lawsuit denying any wrongdoing.
“The complaint filed in this case is a study in defamation (perhaps privileged – perhaps not) and character assassination based on rumor, innuendo, ‘anonymous sources,’ assumption that lack either logical or factual support, misstatement and misrepresentation of ‘facts’ as evidenced by the very attachments to the complaint and either a complete ignorance of applicable law or a pervasive disregard of applicable law,” attorney Michael S. Bogren, who is representing Hamre, Grote and Van Buren County, said in a brief in support of a motion to dismiss the lawsuit filed Jan. 30.
Stewart’s answer struck a similar tone, saying, “In their complaint, plaintiffs weave a fanciful, but threadbare tapestry of conspiracy in a federal RICO enterprise.
“Plaintiffs’ claims asserted … are not plausible on their face,” Stewart contends.
Among other things, Bogren contends in his brief that Baker’s lawsuit contains nothing upon which relief can be granted, while Hamre is entitled to “judicial immunity” and the county to governmental immunity. As for Grote, Bogren says the allegations that she committed perjury are “completely meritless based on the plaintiff’s own complaint.”
“The complaint reads less like a pleading filed in federal court than it does poorly written fiction,” Bogren wrote.
The answers filed by attorneys for Bedford, McKay and the Village of Paw Paw also argue that that each is entitled to immunity from legal action.
Bedford’s answer also directly addresses his relationship with Page and Stewart. He admits to being close personal friends with the two attorneys, but denies ever taking bribes from Page, or taking hunting trips at Page’s property on the Illinois River that were paid for by Page.
Bedford said he had taken a hunting trip to Canada with Page but denied the allegation in Baker’s lawsuit that Page paid for it. Bedford neither admitted nor denied in his answer that he drove Page and Stewart to a fundraiser in July for state Attorney General Bill Schuette, but admitted that he promoted Stewart as a replacement for Hamre’s open seat on the circuit court bench.
Also in his answer to the lawsuit, Bedford denies that he and Page had a business relationship through which “they directly or indirectly exchanged cash payments.” He also denies owning a company named Treadlok Security, Inc., or that Page filed the articles of incorporation for the company in 1991. Records from the Michigan Department of Licensing and Regulatory Affairs list Bedford as the company’s resident agent and Page is listed on the company’s articles of incorporation, which were filed in 1999.