DocketNumber： 156086
Filed Date： 1/16/2019
Status： Precedential
Modified Date： 1/21/2019
STATE OF MICHIGAN SUPREME COURT 156086(97) RITA KENDZIERSKI, BONNIE HAINES, GREG DENNIS, LOUISE BERTOLINI, JOHN BARKER, JAMES COWAN, VINCENT POWIERSKI, ROBERT STANLEY, ALAN MOROSCHAN, and GAER GUERBER, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees, SC: 156086 v COA: 329576 Macomb CC: 2010-001380-CK MACOMB COUNTY, Defendant-Appellant. _________________________________________/ Statement of Justice David F. Viviano Regarding Plaintiffs-Appellees’ Motion to Disqualify January 16, 2019 VIVIANO, J. I deny plaintiffs’ motion for disqualification.1 As an initial matter, recusal is a consequential action, and courts have recognized a judge’s duty to hear cases in which recusal standards are not met. See, e.g., In re Drexel Burnham Lambert, Inc, 861 F2d 1307, 1312 (CA 2, 1988) (“A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is.”); Anderson v United States, 754 A2d 920, 925 (DC, 2000) (“Although a judge has a duty to recuse when required, a judge has as strong an obligation not to recuse when the situation does not require.”) (quotation marks and citation omitted). Justices of this Court have also recognized a “duty to sit” that constrains members of a court of last resort in particular. See Citizens Protecting Michigan’s Constitution v Secretary of State,482 Mich 949
, 951 n 3 (2008) (statement by YOUNG and MARKMAN, JJ.) (discussing the “the ‘Duty to Sit’ doctrine, under which there is an obligation to remain on any case absent good grounds for recusal, especially in a court of last resort, such as the supreme court of a jurisdiction, where there are no substitute judges to take the place of those who are recused”) (quotation marks and citation omitted). 1 See MCR 2.003(D)(3)(b) (“In the Supreme Court, if a justice’s participation in a case is challenged by a written motion . . . the challenged justice shall decide the issue and publish his or her reasons about whether to participate.”). I requested that the Supreme Court Clerk, Larry Royster, send a letter to counsel on the subject of disqualification because I did not know whether the parties were aware that my father is a retiree of Macomb County and that my father and mother receive healthcare benefits from the county that may be impacted by the Court’s decision in this case. 2 However, plaintiffs concede that they have known since early 2011 that my father was a retiree of Macomb County and that by early 2013 (when they took the deposition of Wendy Fisher), plaintiffs further were made aware that changes to the healthcare benefits of the county’s union and nonunion retirees had moved in lockstep. A motion for disqualification in the Supreme Court must be filed “within 28 days after the filing of the application for leave to appeal or within 28 days of the discovery of the grounds for disqualification.” MCR 2.003(D)(1)(c). Plaintiffs’ motion is not based on newly discovered grounds and was not filed within 28 days after the filing of the application for leave to appeal. It is therefore untimely.3 Despite the fact that defendant raised the timeliness issue in its response, plaintiffs have failed to show good cause for their untimeliness.4 Therefore, I deny as untimely plaintiffs’ motion for disqualification on this ground. After arguing that my family interests warrant recusal (presumably on the basis that I may be partial to plaintiffs), plaintiffs argue somewhat inconsistently that I should also be disqualified because of my relationship with the Macomb County Executive (presumably on the basis that I may be partial to defendant). In particular, plaintiffs express concern that I recently attended the County Executive’s official and public swearing-in ceremony and his annual State of the County Address. However, plaintiffs provide no authority for the proposition that judges should not attend public ceremonies involving the other branches of government. It is not uncommon for the members of this Court, or the United States Supreme Court for that matter, to attend or conduct 2 Judges have an ethical responsibility to “raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(C).” Code of Judicial Conduct, Canon 3(C). 3 Contrary to the implication in plaintiffs’ reply brief, the statement in Mr. Royster’s letter that the parties must file a motion for disqualification “within 28 days of the date of this letter” did not suspend the timing requirements of the rule. Rather, the letter stated only that the rule provides a 28-day period for motions for disqualification if the grounds are newly discovered. See MCR 2.003(D)(1)(c) (“All other motions must be filed within 28 days after the filing of the application for leave to appeal or within 28 days of the discovery of the grounds for disqualification.”) (emphasis added). Here they were not. 4 After stating that a motion for disqualification “must” be filed within the time periods set forth in the rule, MCR 2.003(D)(1)(c), and that untimely motions “may be granted for good cause shown,” MCR 2.003(D)(1)(d), the rule confusingly states that “untimeliness is a factor in deciding whether the motion should be granted,” MCR 2.003(D)(1)(d). It is unclear, therefore, how much discretion a judge has to grant an untimely motion to disqualify. See generally Davis v Chatman,292 Mich App 603