SCOTUSblog recently posted a piece about a recent SCOTUS order appointing an attorney to brief and argue a case in defense of a ruling by the U.S. Court of Appeals for the 5th Circuit because the federal government declined to do so (Justices appoint former clerk to argue First Step Act cases).

Procedurally, this reminded me of the current posture of a matter the Michigan Supreme Court has ordered argument, In re Contempt of Kathy H. Murphy. It’s a messy appeal involving an attorney who was held in contempt by a 36th District Court judge during a felony case.

From the Michigan Supreme Court’s case summary:

Attorney Kathy Murphy was representing a criminal defendant at his preliminary examination before District Judge Kenyetta Stanford Jones in 36th District Court when, during a recess and while the court was off the record, Murphy engaged in conduct the judge found to be contemptuous. 

The judge immediately held a summary proceeding and found Murphy criminally liable for contempt of court and ordered her to serve time in jail after the preliminary examination concluded.  The judgment of contempt sentenced Murphy to two days in jail, which she served in the Wayne County jail. 

Murphy appealed to the circuit court.  Wayne Circuit Judge Noah P. Hood reversed and vacated Murphy’s contempt conviction, concluding that the district judge abused her discretion by not specifying what happened while making her factual findings.  But Judge Hood remanded the case to the district court for nonsummary contempt proceedings consistent with MCR 3.606.  Murphy moved for reconsideration, arguing that further contempt proceedings on remand would violate her constitutional right against being held twice in jeopardy.  Judge Hood denied the motion for reconsideration. 

The Court of Appeals affirmed the circuit court in a published opinion. 

The Supreme Court has ordered oral argument on the application to address:  (1) whether jeopardy attaches to summary contempt proceedings and if so, (2) whether the reversal of Murphy’s summary contempt conviction means double jeopardy would bar a remand for nonsummary contempt proceedings.

The attorney filed an application for leave with the Michigan Supreme Court on May 16, 2023. For its September 19, 2023 Answer to the application, the Wayne County Prosecutor took no position and explained:

Because the People do not represent the Judge, the People submit that the proper parties to this action are the appellant and the judge that issued the finding of criminal contempt (here, Judge Kenyetta Standford Jones). The Judge may perhaps be represented through the court’s Office of Judicial Assistant, which, unlike the People, can act in an attorney-client relationship with the Judge.

The Michigan Supreme Court issued its order for oral argument on the application on December 20, 2023.

The appealing/contemnor attorney filed her supplemental brief on January 30, 2024.

To date, no responsive briefing has been filed.

In these uncommon circumstances, the Michigan Supreme Court may need to appoint someone to brief and argue the other side—like SCOTUS sometimes does.