Per Shuster: Big Ten Hiring Local Counsel Derailed TRO on Friday

Submitted by Maizinator on November 12th, 2023 at 8:05 PM
https://twitter.com/DavidShuster/status/1723857457049387139?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1723857457049387139%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=

Need the legal guys to weigh in on this regarding if it even makes sense.  

In one of the threads on Friday night, someone remarked about having opposing counsel entered in the record.

If so, score one for the Big Ten I guess, but the war isn't over.

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EDIT (LSA) - a "long story made short" reply that I received someone that covers the next steps - "On Friday there will be a hearing on whether the TRO is granted. The TRO would preserve the status quo (JH coaching) until a hearing on the request for preliminary injunction. If the PI is granted, JH can coach until the breach of contract lawsuit is decided on the merits."

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rob f

November 12th, 2023 at 8:10 PM ^

I got texts in the last hour about this from 2 different U of M-trained lawyers, both also saying that Friday's hearing will be in front of Judge Connors rather than Kuhnke.

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M-Dog

November 12th, 2023 at 11:02 PM ^

Hence the problem. 

They are vague and nebulous bylaws as relates to this issue, inviting mischief and bad faith.  You are at the mercy of the commissioner to be above that, but don't have recourse if he is not.

To be clear, Michigan's legal case isn't to prevent the commissioner from screwing them - they can't - their case is only to prevent the commissioner from screwing them more than he is allowed.

Within certain boundaries, the commissioner can do what he pleases.  If he decides (or is goaded into deciding) that Harbaugh's khakis are "unsportsmanlike", he can suspend Harbaugh for 2 games and fine Michigan $10,000.

It's a problematical system.  

The underlying issue is the Big Ten "little king" rules that allow the commissioner to implement capricious and arbitrary rulings from above.  It creates too much pressure to have to do the bidding of mobs.

This needs to be reformed and ALL Big Ten policies and due process codified, including defined punishments.  Then it doesn't matter if other Big Ten members like you or not.  They can't just gang up on you and get arbitrary take down rulings against you from above.

No Big Ten member(s) should be able to do a take down of another Big Ten member based on mere spite.

Until that is addressed, I don't see how Michigan can sustainably stay in the Big Ten. 

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Red is Blue

November 12th, 2023 at 8:57 PM ^

Even if he believes he can judge in an unbiased manner, isn't he under some obligation to consider how it might look?  Ie, to avoid a possible perception of impropriety, even though none existed.

Edit:  Should have said "as he decides whether to recuse himself, is he under an obligation to consider...". I can see how what I originally wrote could have been construed as to whether he ought to consider appearances in his actual ruling ( obviously not).

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J. Redux

November 12th, 2023 at 9:09 PM ^

No.  If there is any question of impropriety, you recuse yourself.  You absolutely do not tilt the scales against your interests, as that is equally unfair as tilting the scales toward your interests.

If the judge has not recused himself, he is asserting that he will issue an unbiased ruling; unbiased does not mean anti-biased. :)

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Red is Blue

November 12th, 2023 at 9:23 PM ^

Not sure where you got I was thinking he would put his thumb on the scale ( in either direction).  My question was, (edit: in the course of deciding whether to recuse himself). does he have to consider how it might look from the outside even if he is completely unbiased?

Ie, for sake of this example, he makes an unbiased ruling in favor of Michigan.  But, from the outside, it could appear that his background may have influenced his decision ( even though it didn't).  (Edit: is this a reason to recuse himself)

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J. Redux

November 12th, 2023 at 9:37 PM ^

Well, the only way to “consider how it might look from the outside” would be to (a) recuse himself or (b) put his thumb on the scale.  Option (a) is preferred.

It seems like you’re asking about some kind of third path — make an unbiased ruling that somehow takes public criticism into account.  But “trying to avoid criticism” is a bias.

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Red is Blue

November 12th, 2023 at 9:51 PM ^

Talking past each other I think.  I probably was unclear.  I am not asking about the actual ruling ( if he keeps the case he should obviously judge it on its merits regardless of how it might look to an outsider ). 

When deciding whether he should recuse himself,  is he supposed to consider how outside observers might view his participation?  

When deciding to recuse himself does he need to consider that if he keeps the case and the facts merit ruling in Michigan's favor, there will be loud screams from some quarters that he was a "homer" regardless of whether that was true.

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J. Redux

November 12th, 2023 at 10:10 PM ^

Ah, OK, now I understand — sorry about that. :/

AFAIK — and I looked, but I’m neither a lawyer nor a judge — judges are expected to self-police both for actual bias and for perceived bias.  However, the bar for perceived bias is going to be fairly high and partly depends upon the other judges who would be available to hear a case.  The suggestion I found was that a judge should recuse when there was an obvious, un-conflicted judge that would be able to take the case instead.

Michigan also appears to allow either party to petition for a judge’s disqualification, although most of the examples I found were from the Court of Appeals; I’m not sure how it’s handled at the regular trial court level.  And, of course, one potential cause for appeal is that the judge should have been disqualified and wasn’t — but as I stated elsewhere, I don’t think TROs are appealable, although I believe preliminary injunctions are.

So, TL/DR: When possible, yes, the judge should recuse himself for perceived bias — but ultimately it’s generally up to the judge, and considering how many judges in southeastern Michigan are going to have U of M ties, I doubt there’d be much point.

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StirredNotShaken

November 12th, 2023 at 8:56 PM ^

I see a Nick Roumel works for the law firm (Nacht Law) that was hired by the Big 10 to oppose the TRO. According to the bio on the firm's website, he is the same Nick Roumel that guest writes for Punt - Counter Punt on this site. 

https://www.nachtlaw.com/attorney/roumel-nicholas/

Edit: Feel like I should add a big "if" it's true that Nacht Law firm is representing the Big 10. I'm going off Shuster's tweet which may or may not be correct. 

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FB Dive

November 13th, 2023 at 12:26 AM ^

I agree that an alumni connection does not warrant recusal, but Judge Connors is a lecturer at the Law School. He's literally on the payroll of one the parties. He should recuse. I have no doubt that he will do his best to be impartial, but the mere awareness of an apparent bias can cloud one's judgment. 

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steviebrownfor…

November 12th, 2023 at 8:11 PM ^

The actions by the big ten seem particularly vindictive.  It really seems like their objective is first and foremost to punish Michigan, then figure out the whys and what's and how's later on.

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InterlopingYooper

November 12th, 2023 at 8:29 PM ^

How do we proceed? We leave this fucking conference, that’s how we proceed. They’ve done far more to us than they have for us. Can you imagine the audacity of programs like Northwestern, Illinois and Indiana taking in TV money hand over fist on the backs of Michigan, and then biting the hand that has fed them like this? Blow up this sweet TV deal they just got. The unprecedented punitive actions the commissioner took last week is grounds for us to walk, and we ought to do just that. 

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wetnoodle

November 12th, 2023 at 9:04 PM ^

He is not getting canned.  You have over half the teams that support and are pushing this bs so no way in hell they will get rid of him 

Now if Michigan leaves the Big 10 I would bet Foxsports comes back to the Big 10 regarding the contract and once the new numbers are there (alot less) he might be canned then. But no reason to stay when pretty much all teams are conspiring against us

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