Anthony Pellegrino v. Ampco Systems Parking

l\/lichigan Supreme Court
EXHlBlT A . _
u.s. srere supreme court Jusii¢@ vera C<>r~@@~
. Research as of 1/11/10
Recusal Rules and Practices page 1
Does rule require recusal for
STATE Recusal Rules/Statutes "appearance of impropriety"? Do other justices vote?
The statutory provisions require
recusal for campaign contributions
above a specified amount absent The clerk states that other
waiver and state the legislative justices could vote but
intent is to avoid an "appearance of that it has never
impropriety." The statute contains happened. No written rule
Canon 3C; Code of Ala § 12- objective thresholds regarding what exists regarding this
ALABA|V|A 24-1 and 12-24-2 constitutes such an appearance. practice
The clerk indicates that
AS 22.20.020 allows other
justices to appoint a judge
to review a justice's
recusal declination but
that it has never
ALASKA Canon 3E; AS 22.20.02O NO happened
ARlZONA Canon 3E(4) NO NO
Supreme Court Rule 6-4;
ARKANSAS Canon 2.11 NO NO
CALIFORN|A Canon 3E(4) NO NO
COLORADO Canon 3(C); CRCP 97 NO NO
Code of Judicial Conduct
Canon 3C; Conn. Practice
CONNECTlCUT Book 1-22 NO NO
Code of Judicial Conduct,
DELAWARE Canon 3; Rule 2.11 NO NO
Code of Judicial Conduct,
Canon 3E, [R Jud. Admin.
FLORIDA 2.330 is for trial judgesj NO NO
OGCA, sect. 15-1-8; Code of
GEORG|A Judicial Conduct Canon 3E NO NO
Code of Judicial Conduct;
HAWAll Rule 2.11 NO NO
Canon 3E [Court Rule 40(d)
lDAHO doesn't apply to justices] NO NO
Supreme Court Rule 63 (lL
Code of Judicial Conduct
ll_LlNOlS Canon 3) NO NO
lN Code of Judicial Conduct
|NDlANA Rule 2.11 NO NO
|OWA lA R 51.Canon 3(C) NO NO
KS Rules Re|ating to Judicial
KANSAS Conduct Rule 2.11 NO NO
SCR 4.300 KY Code of
Judicial Conduct, Canon
KENTUCKY 3(E); KRS 26/\.015 (statute) NO NO
l\/|ichigan Supreme Court
EXHlBlT A . .
U.S. State Supreme Court J“S'“C@ M@“l@ C°"'Qa"
. Research as of 1/11/10
Recusal Rules and Practices page 2
Does rule require recusal for
STATE Recusal Ru|es/Statutes "appearance of impropriety"? Do otherjustices vote?
Code of Judicial Conduct
Canon 3(C); Code of Civ Pro,
art. 151, 152, 159; Code of
Crim Pro 671, 672; Supreme YES. if challenged justice
Court Rules Part L, Rule decides not to recuse,
XXXVl (Civ Pro and Crim Pro remaining justices vote.
rules are enacted by the Code of Civ Pro art. 159;
LOUS|ANA Legislature) NO Code of Crim Pro art. 679
Nlaine Code of Judicial
l\/|AlNE Conduct Canon 3(E) NO NO
Md Rule 16-813, l\/laryland
Code of Judicial Conduct
l\/|ARYLAND Canon 3(D) NO NO
Supreme Judicial Court Rule
3:09, l\/lass Code of Judicial
l\/|ASSACHUSETTS Conduct, Canon 3(E) NO NO
52 |Vlinn Statutes Annotated,
Code of Jud.Conduct, Canon
l\/||NNESOTA 3(D) NO NO
|Vliss R App Pro 48(B) for trial
judges, and l\/liss R App Pro
48(C) for disqualifiation of
justices orjudges of appellate YES. l\/liss R App Pro
M|SS|SS|PPI courts NO 48(C)(a)(iii).
YES. Clerk said that other
justices could vote based
on the court's unwritten
policy for handling
recusals, but the clerk
was unaware of any time
in which justices actually
Supreme Court Rule 2.03, voted on the recusal cfa
l\/||SSOURI Canon 3(E) NO co-equal justice.
Mont CA § 3-1-803; Mont
MONTANA CJC Rule 2.12 NO NO
NEBRASKA Neb CR § 5~203(E) NO NO
NEVADA Nev RS 1.225 NO YES. Nev RS 1.225.
NEW HAMPSHIRE NH Sup Ct R 38-3(E) NO NO
NEW JERSEY NJ CR1:12-1 NO NO
NlVl Const art 6, § 18; NM CR
NEW l\/IEX|CO 21-400 NO NO
NEW YORK NY CR 100.3(E) NO NO
EXHlBlT A
U.S. State Supreme Court
Recusal Rules and Practices
l\/lichigan Supreme Court
Justice l\/laura Corrigan
Research as of 1/11/10
page 3
STATE
Recusal RuleslStatutes
Does rule require recusal for
"appearance of impropriety"?
Do otherjustices vote?
NORTH CAROL|NP
Judicial Canon 3C(1)
NO
NO. 0ther justices never
vote on recusal But a
party aggrieved by a
justice's refusal to recuse
could bring it before the
judicial standards
commission. lf the
commission
recommended removal or
censure, that would go
before the other justices.
And the Chief Justice
could remove the case
from the S Ct to the COA.
But the clerk never
remembers that
happening or there ever
having been an issue.
NGRTH DAKOTA
ND Code of Judicial Conduct
Canon 3E(1)
NO
NO
OHlO
Ohio Code of Judicial
Conduct 2.11; OH Const. Art.
lV, sect 5(C)
NO
NO
Code of Judicial Conduct
Canon 3E (current)/ R. 2.11
(new proposed); Title 20 OK
OKLAHON|A
St. Sect. 1402
NO
Justices generally decide
for themselves but in OK
the Chief Justice's brother
is the AG. in a few case
involving the AG's office,
the Chief Justice has
asked a motion for
DQ/recusal to be
considered at the justices'
conference. Also, when a
(usua|ly pro se) litigant
asks for DQ of entire S Ct
that of course is
considered by full court.
EXHlBlT A
U.S. State Supreme Court
Recusal Rules and Practices
Michigan Supreme Court
Justice l\/laura Corrigan
Research as of 1/11/10
page 4
STATE
Recusal Rules/Statutes
Boes rule require recusal for
"appearance of impropriety"?
Do other justices vote?
OREGGN
Code of Judicial Conduct JR
2-106; ORS 14.275, 14.210;
ORAP 8.3O
NO
YES. if a justice does not
believe the motion to DQ
is well taken, the justice
shall refer the motion to
the chief justice, who may
rule on the motion or may
refer the motion to the full
court for a decision.
ORAP 8.30. in practice,
justices tend to DQ
themselves liberally and
this is not usually an
issue. The S Ct did go
through this process
("went through the
motions") of bringing a
DQ motion before the full
court where a pro se
litigant filed a completely
baseless motion to DQ a
justice.
PENNSYLVAN\A
Code of Judicial Conduct
Canon 3C; Conn. Practice
Book 1-22
NO
NO.
RHODE lSLAND
Rl Code of Judicial Conduct
Canon 3(E)
NO
NO. Aithough the
challenged justice may
choose to dicuss it with
the Court. The clerk had
never heard of the Court
disagreeing with a
challenged justice's
decision or of a vote by
the unchallenged justices
SOUTH CAROL|NA
SC Code §§ 14-1-130, 14-3-
50; SC Code of Judicial
Conduct Canon 3(E)
NO
NO. Aithough the
challenged justice could
seek input from the Court.
Maybe the Court could act
if they disagreed with the
justice's decision, but the
Clerk had never seen this
happen
SOUTH DAKOTA
SD Code 15-12-37; Code of
Judicial Conduct 3(E)
NO
NO
TN Const art V|, § 'l’l; TN R
TENNESSEE
Sup Ct 'lO-3(E)
NO
NO, according to the
rules. As yet unable to
get phone confirmation re:
whether might be an
informal practice
EXHlBlT A l\/lichigan Supreme Court
U.S. State Supreme Court J“S'“°@ Ma“l'a Corrigan
. Research as of 1/11/10
Recusal Rules and Practrces pepe 5
Does rule require recusal for
STATE Recusal Rules/Statutes "appearance of impropriety"? Do otherjustices vote?
YES. No written rule, but
their Supreme Court
Ruies attorney confirms
that the remaining justices
vote if there is a motion to
Const art 5, sec 11; Rule recuse one justice and he
18b; informal Supreme Court decides not to recuse
TEXAS voting practice NO himself
NO, according to the
rules. As yet unable to
UT Code 78A-2-222; UT get phone confirmation re:
Code of Judicial Conduct whether might be an
UTAH Canon 3(E) NO informal practice.
YES. if challenged justice
decides not to disqualify
12 Vt SA § 61 and Vt Code J himseif, quorum of
Conduct Canon 3(E) and Vt remaining justices vote. Vt
VERi\/|ONT R App Pro, Rule 31(d)-(e) NO R App Pro, Rule 31(e).
VlRGlNlA VA Sup Ct R 6:3-3(E) NG NO
RC Wash 2.28.030 and
WASH|NGTON Wash CJC 2(D) NO NO
W Va R of App Proc 29(b)
and Code of J Conduct
WEST VlRGlN|A 3(E)(1) NO NO
WiSCONSlN Wis CL § 757.19 NO NO
Wy R Civ P 40.1(b)(2) and
WYOM|NG Wy R J Cond 2.11 NO NO
Order
EXHlBlT B
November 25, 2009
ADM File NO. 2009~04
Arnendment of Rule 2.003
of the Michigan Court Rules
the Michigan Court Rules are adopted, effective immediately
[Additions are indicated by underline, and deletions by strikethrough.]
Michigan Supreme Court
Lansing, Michigan
l\/larilyn Kclly',
Chief_lusdcc
l\/Iichael F. Cavanagh
Elizabeth A. \`f/eaver
Maura D. Corrigan
Robert P. Young, jr.
Stephen Markmari
Diane M. Hathaway,
j ustices
()n order of the Court, notice of the proposed changes and an opportunity for
comment in writing and at a public hearing having been provided, and consideration
having been given to the comments received, the following amendments of Rule 2.003 of
Rule 2.003 Disqualification of Judge
tel
(_B_=°~=)
(QB)
Applicabilitv. This rule applies to all iudges, including justices of the
Michigan Supreme Court, unless a specific provision is stated to apply only
to judges of a certain court. The word "iudge" includes a justice of the
Michigan Supreme Court.
Who May Raise. A party may raise the issue of a judge’s disqualification
by motion; or the judge may raise it.
Grounds. A judge is disqualified when the judge cannot impartially hear a case,
including but not limited to instances in which:
(_l_j Disqualiflcation of a judge is warranted for reasons that include. but are not
limited to, the followin,129 S. Ct. 2252;
173 L. Ed. 2d 1208 (2009), or (ii) has failed to adhere to the
appearance of impropriety standard set forth in Canon 2 of the
Michigan Code of judicial Conduct.
The judge has personal knowledge of disputed evidentiary facts
concerning the proceeding
The judge has been consulted or employed as an attorney in the
matter in controversy
The judge was a partner of a paity, attorney for a party, or a member
of a law firm representing a party within the preceding two years.
The judge knows that he or she, individually or as a fiduciary or the
judge's spouse, parent, or child wherever residing, or any other
member of the judge's family residing in the judge’s household, has
an more than a de minimis economic interest in the subject matter in
controversy that could be substantially impacted by the proceeding
n ¢ n n ¢ q ¢ - n ¢a n - q - q n ¢~
v o avco ‘ c c v ~ c"_ v ¢ \ v v c n
The judge or the judge's spouse, or a person within the third degree
of relationship to either of thern, or the spouse of such a person:
(ia) is a party to the proceeding, or an officer, director, or trustee
of a party;
(iib) is acting as a lawyer in the proceeding;
(iiie) is known by the judge to have a more than de minimis interest
that could be substantially affected by the proceeding; or
(,i_y_el) is to the judge’s knowledge likely to be a material witness in
the proceeding
Q) Disqualification not warranted
tel
A judge is not disqualified merely because the judge's former law
clerk is an attorney of record for a party in an action that is before
the judge or is associated with a law firm representing a party in an
action that is before the judge
f_b_) A iudge is not disqualified based solely upon campaign speech
protected by Rez)ul)lz`can Parrv ofMz'nn v White, 536 U.S. 765 {2002).
so long as such speech does not demonstrate bias or preiudice or an
appearance of bias or prejudice for or against a party or an attorney
involved in the action.
(_l_)_€) Procedure.
(l)
(2)
(3)
T ime for Filz`ng. To avoid delaying trial and inconveniencing the witnesses,
a motion to disqualify must be filed within 14 days after the moving party
discovers the ground for disqualification If the discovery is made within
14 days of the trial date, the motion must be made forthwith lf a motion is
not timely filed, untimeliness, including delay in waiving jury trial, is a
factor in deciding whether the motion should be granted.
All Grounds to Be Inc!ua'ed; Ajj”zdavz`t. ln any motion under this rule, the
moving party must include all grounds for disqualification that are known
at the time the motion is filed. An affidavit must accompany the motion.
Rulz'ng.
§a_) For courts other than the Supreme Court, §D-the challenged judge
shall decide the motion. If the challenged judge denies the motion,
(ia) in a court having two or more judges, on the request of a
party, the challenged judge shall refer the motion to the chief
judge, who shall decide the motion de novo;
(iila) in a single-judge court, or if the challenged judge is the chief
judge, on the request of a party, the challenged judge shall
refer the motion to the state court administrator for
assignment to another judge, who shall decide the motion de
novo.
1b1 In the Supreme Court, if a iustice’s participation in a case is
challenged by a written motion or if the issue of participation is
raised by the justice himself or herself, the challenged iustice shall
decide the issue and publish his or her reasons about whether to
participate
lf the challenged justice denies the motion for disqualification a
party may move for the motion to be decided by the entire Court.
The entire Court shall then decide the motion for disqualification de
novo. The Court’s decision shall include the reasons for its grant or
denial of the motion for disqualification The Court shall issue a
written order containing a statement of reasons for its grant or denial
of the motion for disqualification. Any concurring or dissenting
statements shall be in writing.
(4) IfDisqualz`ficatz`0n Moi‘ion is Granted.
(_a_) For courts other than the Supreme Court, wWhen a judge is
disqualified, the action must be assigned to another judge of the
same oourt, or, if one is not available, the state court administrator
shall assign another judge.
Qg) In the Supreme Court. when a justice is disqualified the underlying
action will be decided by the remaining justices of the Court.
(§D) Remittal~Waiyer of Disqualification.
c ucc ’
. Parties to the proceeding may waive disqualification even
where it appears that there may be grounds for disqualification of the judge. Such
waiver may occur whether the grounds for disqualification were raised by a party
or by the iudge. so long as the judge is willing to Darticipate. Any agreement to
waive disqualification must be made by all parties to the litigation and shall be in
writing or placed on the record.
KELLY, C.J. (concurring).
l voted for this recusal rule and write to discuss it and respond, in part, to the
criticism leveled against it.
ln adopting this rule, the Michigan Supreme Court has, for the first time in its long
history, reduced to writing a rule to govern when a justice should not vote on a case. ln
the past, the justices wrote rules on recusal but applied them to other judges only, not to
themselves.
Some of us have long believed that the interests of the legal community and of the
general public are best served if a Supreme Court recusal rule is put in writing in that
way, all can see and understand something that has long been shrouded in mystery: how
recusal works in the Michigan Supreme Court.
Curiously, until recently, it was generally unknown that, when a motion to recuse
was tiled, only the justice at whom it was directed acted on it. The Court then issued an
order that appeared to be an action of all the justices 'l`ypically, no reason was given to
the petitioner or the public if the request to recuse was denied. Also, no procedure existed
to permit the party seeking a justice’s recusal to obtain a vote of the other justices if the
motion was denied
important to this discussion is the fact that, this year, the United States Supreme
Court rendered its decision in the case of Caperton v A.T. Massey Coal Co, Inc.' lt
reversed an order of the West Virginia Supreme Court iii which a justice there reiiised to
recuse himself following a procedure similar to that long used by the Michigan Supreme
Court. The Court found that the party seeking the justice’s recusal had been deprived of
his constitutional right to due process. This was partly because, the Court found, a
justice’s decision on his or her own recusal is inherently subjective. But, the due process
clause requires an objective decision.z
l read Caperi.‘on to mean that an independent inquiry into a challenged justice’s
refusal to recuse may be necessary to satisfy due process because the independent inquiry
makes possible an objective decision That independent inquiry has been written into
l\/lichigan’s new rule where it allows the party requesting recusal to seek a vote on the
motion by the entire court.
Those of us supporting Michigan’s new rule believe that the situation that gave
rise to the Capertoii case should not be allowed to take place in this state. For that reason,
together with the obvious need for increased clarity and understanding about our recusal
procedures, we have voted for this rule.
l have read justice Young’s and Justice Corrigan’s statements that accompany this
order. l quite agree with them that the order must not be applied to curtail fundamental
freedoms. l have not heard any of the justices who favored the order suggest that it will
be used "to prevent judicial candidates from speaking their rninds" or to prevent "the
voters [from electing] judges of their choosing." l know of nothing that would
reasonably lead one to believe that the order will be used to permit "duly elected justices
1 _*__US___; 129 S. Ct. 2252; 173 L. Ed. 2d 1208 (2009). Since Caperton was decided, the
Wisconsin Supreme Court amended its recusal rule in response See Wz'sconsz`n Supreme
Court Rule Pez‘i!z`ons 08-] 6, 08~25, 9~10, and 9-1] (acted upon October 28, 2009).
Michigan is not the first state to react with a rule change
2 Caperton, supra at 2263.
[to deprivej their co-equal peers of their constitutionally protected interest in hearing
cases." And it seems an outrageous stretch of credulity to suggest that "starting today,
those contesting traffic tickets will enjoy greater constitutional protections than justices
of this Court."
ln suggesting that no precedent exists for a judge to be removed from a case
against his or her will, Justice Corrigan and justice Young forget this: under our existing
rules,3 trial judges are removed from cases against their will in our courts every day and
have been for years. Unanswered in their statements is the question: Why should trial
judges be subject to having their decisions not to recuse themselves reversed by their
peers while justices are insulated from the same treatrnent?
With respect to the constitutional arguments posed by Justices Corrigan and
Young, it should be noted that these arguments were made only at the eleventh hour. The
parts of the rule that they attack have been actively before the Court for more than a year.
If any serious treatment of them was intended, it would seem it would have been put forth
well before the rule was voted on.
As Justice Weaver has pointed out in her statement, the decision to adopt this rule
has been anything but "hasty," notwithstanding the assertions of Justices Corrigan and
Young. In fact, the rule has received the Court’s constant vision and revision, particularly
during the last year. The normal procedure for rule adoption has been followed,
including public comment and public hearing
Justice Young belatedly raises numerous constitutional challenges to the rule.
Certainly, the Court can and, no doubt, will discuss them in due time. 'I`here has been no
decision to refuse to place justice Young’s proposals on the conference agenda. Suffice
it to say that the rule in no way prevents the United States Supreme Court from reviewing
a recusal decision made by our Court, as he apparently fears.
No factual basis exists on which to ground the insinuation that those who voted for
this rule will use it to remove a justice from a case for improper reasons. No facts have
been shown to support this assertion None exist. justice Marl~nnan’s fears of
"garnesmanship” and "politicization" in the Court’s future handling of recusal motions
3 MCR 2.0(}3(€)(3). lf the challenged judge denies the motion to recuse, in a court having
two or more judges, the chief judge may reverse the decision and require recusal. In a
single~judge court or if the challenged judge is the chief judge, the state court
administrator may assign the decision to another judge who may overturn the refusal to
recuse.
arise only from his irnaginings. Whether there will be further "acrimony" lies, in part, in
the hands of each justice
l\/loreover, it is a gross perversion of law for Justice Corrigan to allege that, "ln
one administrative order [the recusal rule], the majority takes away the right of every
citizen of Michigan to have his or her vote count." The accurate statement is, with this
rule, the Court permits a justice’s recusal where that justice is unable to render an
unbiased decision and unable or unwilling to acknowledge that fact. The justice system
and this Court can only be stronger for it.
CAVANAGH, J. (concurring). The process by which justices are disqualified from
hearing a case before this Court is not merely a theoretical matter. The disqualification
process has very real consequences for the parties who seek justice from this Court, as
well as the public at large. Our current practice provides no avenue to redress a decision
by a justice who refuses to disqualify himself, no matter how much evidence is produced
that the justice is indeed actually biased.
lf my dissenting colleagues truly believe that our current practice is the best for
Michigan’s citizens, then they should have no problem explaining their rationale to the
public and hearing the public’s assessment of this rationale. However, l believe they
know that there is no reasonable justification that can be proffered for allowing a justice
accused of bias to be the only one who decides whether he should be disqualitied, other
than "we have always done it this way." l can think of no reasonable explanation that
would be acceptable to the public for maintaining this procedure because it is apparent
that it is incongruous with reason. This is especially true in light of the fact that
Michigan’s own court rules--adopted by this Court--govern disqualifications for all
other judges and explicitly provide the recourse of having the denial of a disqualification
motion reviewed by another judge. See MCR 2.003(€)(3). Remarkably, the majority
believes that members of this Court are above the same rules that it has adopted to apply
to all other judges in the state.
Weaver, J. (concurring). At last this Court has adopted clear, fair, written
disqualification rules for Michigan Supreme Court justices."
4 This concurring statement is submitted November 24, 2009 at approximately 3:20 p.m.
and although other justices have indicated a desire to submit concurring and dissenting
statements, no other statements have been submitted as yet. Because the order is
scheduled for entry on November 25, 'l`hanksgiving Eve, there will not be a reasonable
opportunity to respond to subsequently submitted statements If any response to
statements submitted hereafter is necessary, my response will be submitted to the Court
on a date after Thanksgiving for the Court to file and distribute to the public, and will
also be posted on my personally funded website: justiceweaver.com.
This newly amended rule is a positive, historical step forward toward achieving
more transparency and fairness in the Michigan Supreme Court. The amended rule
provides a fair disqualification process to ensure that the parties appearing before the
Court have justices deciding their cases that are not actually biased, nor objectively
appear to be biased. lt does so in a transparent process by requiring a justice challenged
by a party to submit his or her decision and reasons in writing regarding his or her recusal
decisions and requiring the Court--the remaining justices-if requested by a party to
review the challenged justice’s decision and to publish the remaining justices’ decision
and reasons in writing. This process, of written decision and with written reasons, is fair
to the parties and to the challenged justice lt provides the public with more knowledge
of how the justices conduct the people’s judicial business
1 concur in this Court’s adoption of such rules, but write separately to inform the
parties in pending cases and the public of the improper delay and procedure concerning
entry of this order adopting the amendment and its effective date.
Since May 2003, l have repeatedly called for this Court to recognize; publish for
public comment; place on a public hearing agenda; and address the need to have written,
clear, fair, orderly, and public procedures concerning the participation or disqualification
ofjustices.5
On November 5, 2009, this Court finally adopted rules for disqualification of
justices by amending Michigan Court Rule (MCR) 2.003--Disqualification of Judge. At
our regularly scheduled public administrative conferenee, Justice Hathaway moved for
the adoption of amendments to that court rule. The motion was seconded by Chief
5 See, e.g., the statements or opinions by Weaver, J., in In re JK, 468 Mich 202, 219
(2003); Gilbert v Da.imlerC/z)j)sler Corp, 469 Mich 883 (2003); Advocucy Org for
Patz`ents & Provz'ders v Auto Club Ins Ass'n, 472 Mich 91 (2005); McDowell v Detroit,
474 Mich 999, 1000 (2006); Stamplz's v St john Health Sys, 474 Mich 1017 (2006);
Heikkila v North Star Trucking, Inc, 474 Mich l080 (2006); Lewis v St john Hosp, 474
Mich 1089 (2006); Adair v Mz`chz`gan, 474 Mich l027, 1044 (2006); Grz'evance
Admz`nz`strator v Fieger, 476 Mich 231, 328 (2006); Grz'evance Adminisz‘rator v Fieger,
477 Mich 1228, 1231 (2006); People v Parsons, 728 NWZd 62 (2007); Ruiz v Clara’s
Parlor Inc, 477 l\/Iich 1044 (2007); Neal v Dep't of Corrections, 477 Mich 1049 (2007);
State Auzo Mut Ins C0 v Fieger, 477 Mich 1068, 1070 (2007); Ansarz' v Gold, 477 Mich
l076, 1077 (2007); Short v Anz.‘onz`ni, 729 NWZd 218 (2007); Flemz`ster v Traveling Med
Servz'ces, PC, 729 NWZd 222, 223 (2007); McDowell v Detroiz‘, 477 Mich l079, 1084
(2007); johnson v Herz)j) Ford Hosp, 477 Mich 1098, 1099 (2007); Taz‘e v Cily of
Dearborn, 477 Mich 1101, 1102 (2007); Dep ’t of Labor & Economic Growth v Jordan,
480 Mich 869 (2007); Cooper v Auto Club Ins Ass’n, 739 NW2d 631 (2007); and
Citz`zens protecting Michigan ’s Corzstz'z.‘uz‘z'on v Secretazy of State and Reform Mz`chz'gan
Goverrzment Now! (RMG]\/), 482 Mich 960 (2008).
Justice Kelly and Justice Weaver, and the motion was adopted by a vote of 4-to~3,6 with
the understanding that justice Young and Justice Hathaway would possibly offer an
amendment to MCR Z.OO?>(D)(I) (Tirne for Filing) that might be proposed at the next, or
a future, public administrative conference for discussion and vote. The only portion of
Justice Hathaway’s proposed revision that was not adopted on November 5, 2009 was her
proposed amendment to Subsection (C)(l) (Ti'me for Filing), which remains and is re~
designated now as MCR Z.OO§%(D)(I). By adopting an amendment to MCR 2.003-
Disqualification of Judge--this Court has finally established clear, written, and fair rules
governing the disqualification of justices on the Michigan Supreme Court.
"Immediate effect" of the amendment to MCR Q.OOZ-Disqualification of
Judge-that had just been adopted was established by a 4-to~3 vote on motion by Justice
Cavanagh,? seconded by Justice Weaver. "Imrnediate effect" was necessary because
there were already two cases with pending motions for disqualification against various
justices One of these pending cases, Pellegrz'no v Ampco Sysrems Pczrkz'ng, Docl110 Mich. App. 739, 742 (1981) (noting the holding in Pailje
that "the dual function of Detroit Recorder’s Court as a magisterial court as well as a
felony trial court does not provide for z`nz‘ra-court review whereby judges of equal station
might overrule one another.") (emphasis added); Wayne Co Prosecutor v Recorder’s
Court Judges, 81 Mich. App. 317, 322 (1978) ("judges of co-equal authority lack
jurisdiction to set aside the orders of bond forfeiture issued by their fellow judges.").
lndeed, that may be precisely why in the United States Supreme Court each justice
majority was not circulated to the Court until one day before the November 5, 2009,
administrative conference
l5
decides the recusal question individually; the other justices possess no authority to
remove a justice.lg
To make matters worse, it appears the majority’s violations of our state
constitution may have only just begun. At the November 5, 2009, public hearing, the
Chief Justice suggested that the majority may promulgate a rule for appointing a
replacement justice when a duly elected or appointed justice is recused. She opined:
Clearly this rule isn’t perfect, and l view it as the first step in the
realization of a truly excellent rule. Missing from this is any discussion of
replacing a disqualified justice with another judge for the purpose of
hearing the case involved l think that’s essential. It isn’t here. I’d like to
see that subject addressed another day.
Const 1963, art 6, § 2, however, provides that the "supreme court shall consist of
seven justices ...." Because a recused justice simply does not participate in the case and
does not cease to be a justice of the Court, the Chief Justice’s suggestion would at the
very minimum add an eighth justice. As Justice YOUNG explains more fully, referencing
my statement at 483 Mich 1205, l229-l234 (2009), our constitution does not authorize
the appointment of temporary justices in excess of the seven justices that have been duly
elected or appointed The majority’s potential arrogation of power to itself apparently
knows no bounds.
United States Constitution
The new rule also fails to ensure that minimal due process protections will be
accorded to the challenged justice in a recusal appeal. Because justices elected to this
Court have a vested property right in exercising their judicial duties, they cannot be
divested of that right without an opportunity to be heard before an impartial arbiter. See
Goldberg v Kelly, 397 U.S. 254, 271 (1970); Ng Fung Ho v Wkz`te, 259 U.S. 276, 284-285
(1922). The majority has not adopted justice YOUNG’s proposed amendments that would
have provided the challenged justice the right to counsel, the right to file a brief, and the
right to an evidentiary hearing to determine any material factual questions Also, as
Justice YOUNG’S cogent dissenting staternent, which l join in its entirety, explains well,
the maj ority’s new rule violates the First Amendrnent right to freedom of speech because
it trenches on judicial campaign speech protected by Republican Parzy of Minnesota v
White, 536 U.S. 765 (2002). The majority’s refusal to accord even basic constitutional
rights thus calls the validity of the entire new scheme into question.
This rejection of clearly defined procedural protections will likely encourage
baseless recusal motions by those seeking to "justice-shop."!g Indeed, some members of
18 See also Letter: New court rules may let minority win, The Detroit News, letter to the
editor from Timothy Baughman, Novernber 18, 2009, attached as Appendix A.
19 See Bashman, Recusal on appeal: An appellate advocate ’s perspectz`ve, 7 J App Prac &
Process 59, 71 (2005) (stating that while the "subject of strategic recusal . . . is not often
discussed, no doubt because the goal seems to be unfair and unethical . . . you can be sure
that strategic recusals do occur.").
l6
the current majority seem willing to entertain ploys to remake the elected composition of
this Court to fit the ideological or partisan preferences of certain parties or lawyers.zo
Both this Court and, more irnportantly, the people of l\/lichigan whom we were elected to
serve, deserve better.
By far the most troubling implication of today’s new rule is the majority’s outright
deprivation of the retained sovereign right of the people of Michigan to elect the
members of their judicial branch of government The constitutional magnitude of this
action should not be underestimated. With one fell swoop, the majority simply casts
aside the one~man, one-vote principle of Baker v Carr, 369 U.S. 186 (1962). The justices
of this Court were elected by our fellow citizens to hear and decide cases. We
campaigned on our judicial philosophies, explaining our philosophies in deciding cases
that come before us. The people then chose the justices that they preferred to sit on this
Court in free elections where each vote counted equally. In one administrative order, the
majority takes away the right of every citizen of Michigan to have his or her vote count.
instead of "one~man, one-vote," we now have “four-justices, one-vote," as four justices
usurp the people’s constitutional right to choose who decides the cases coming before the
highest Court in our statc.
Caperton vA.T. Massev Coal Co, Inc:
I have also studied carefully the United States Supreme Court’s recent decision in
Caperton v A.T. Massey Coal Co, Inc.m The question under Caperton is whether the Due
Process Clause of the federal constitution requires this change--that is, that this Court
review de novo a justice’s decision not to disqualify himself from a proceeding My
research reflects that not one state that has examined its rules post-Caperton has changed
its rules regarding the identity of the decision maker.zz Indeed, Michigan becomes an
outlier by doing so. The federal constitution plainly does not require any such action.
The United States Supreme Court itself has not changed its own recusal practices
in response to Caperton. 'l`hat is, it continues to leave recusal decisions to each
individual justice. Nothing in Caperton remotely suggests that this longstanding practice
violates due process Caperton considered the standards for recusal, not the identity of
the decision maker. And unlike the United States Supreme Court, where individual
20 See, e.g., Commentary: Beware power grab for Mz`chz`gan court, The Detroit News,
November 19, 2009, attached as Appendix B.
" caperton »A.r Mass@y coal ca ina _____ us _____; 129 s cr 2252; 173 L ad 2a 1203
(2009). Caperton held that a state supreme court justice was required to recuse himself
from a case involving a corporate party whose chairman and CEO supported the justice’s
campaign both by directly donating the statutory maximum to the justice and by
contributing $Z.S million to an independent group that targeted the justice’s opponent
during the electoral process because the sum of these contributions raised "a serious,
objective risk of actual bias" on the part of the justice. Id. at ___“, slip op at l6.
22 My memo to the Court on this subject is attached as Appendix C.
17
justices’ recusal decisions are entirely unreviewable, recusal decisions of justices of this
Court are subject to review in the United States Supreme Court.
National Implications:
"The game is out there and it ’s either play or g;at played . . . [It’s] all in the game."
- The Wir'e
Myriad questions of national importance bob in the wake of this new
disqualification procedure Do judicial candidates or incumbent justices seeking
reelection show "an appearance of bias or prejudice” even if they merely respond to an
organization’s questionnaire about their personal views on legal and social issues?m
Across the country, organizations have challenged, with varying degrees of success, the
constitutionality of certain provisions in state codes of judicial conduct insofar as those
provisions infringe on the campaign speech of judicial candidates.z"z Plainly, a line exists
between what a judicial candidate can and cannot say during the electoral process.%
Nevertheless, the amorphous standards in the new rule do not clarify the appropriate
demarcation between constitutionally protected campaign speech and disqualifying
conduct.
Moreover, the national debate regarding the necessity of new federal recusal
procedures is ongoing.p Regrettably, however, most of the discussion is glaringly one-
sided. l see little interest in truly considering opposing viewpoints. The House judiciary
Subcomrnittee on Courts and Cornpetition Policy, chaired by Georgia Congressman Hank
Johnson, recently postponed a hearing regarding judicial recusals scheduled for October
20, 2009. The chairman of the Judiciary Conirnittee, Michigan Congressman John
Conyers, has apparently rescheduled the hearing for Decernber l0, 2009. Three of my
colleagues who voted for the new recusal rules have apparently been invited to testify in
person at the upcoming Judiciary Committee hearing In contrast, no member of the
23 The Wire, 100 Greatest Quotes, at
3:36 and 9:50 to 9:55 (accessed Novernber 25, 2009).
24 See, e.g., Duwe v Alexander, 490 F Supp 2d 968 (WD Wis, 2007).
25 Cornpare Kansas Judicial Review v Stout, 562 F?>d 1240 (CA l0, 2009) (disrnissing
lawsuit filed by political action cornrnittee, judicial candidate, and prospective candidate
as moot because the Kansas Supreme Court adopted a new Code of Judicial Conduct
after answering questions certified about former Code provisions) with Duwe, supra at
977 (holding that judicial candidates’ responses to survey questions are constitutionally
protected speech and do not constitute connnitments that could be restricted in the
interest of protecting judicial openmindedness).
26 See Republz'can Party ofMz`nnesota, supra.
27 David Ingram, The National Law .lournal, Congv'ess Set to Take Aim at Judicial
Recusals, (accessed November
23, 2009). _
18
Court who voted against these rules has been invited to testify. l\/ly offer to testify in
person was rejected by a staffer for the House judiciary Subcornrnittee on Courts and
Cornpetition Policy. l was told that l could submit a five-page written statement So
much for full and robust debate about the appropriate scope and structure of any potential
recusal guidelines
Moreover, there appears to be a national push among a handful of well-funded
interconnected advocacy groups to disqualify judges who express their views during the
electoral process. I am aware that George Soros does not support judicial elections
Certain Soros~sponsored groups, including the Brennan Center for justice and justice at
Stalce, have enthusiastically landed the efforts of the rnajority.zg Many voters would be
surprised to know about the extensive financial ties that exist between these organizations
and George Soros’s main foundation, the Open Society institute Preliminary scrutiny of
IRS Form 990s reveals that the Open Society institute has spent at least 334 million to
derail judicial elections in favor of merit selection since 2000. 9
Consistent with these national efforts, when Chief justice KELLY told the public
that the Court has only begun its efforts at divining detailed disqualification rules at our
November 5, 2009 public administrative conference, she added:
Also not present in this rule is the question of when financial
contributions to sitting justices constitute the appearance of bias or the
probability of bias such as to require disqualification That’s l think an
important matter that has to be addressed and l hope that we will address it
soon in the future.["’°i
28 See jonathan Blitzer, Recusal Reform in Michigan, july 31, 2009 ("With justice
Elizabeth Weaver leading the charge, the Michigan Supreme Court is poised to codify
new standards for how and when judges must recuse thernselves.")
(accessed
Novernber 23, 2009); see also Gavel Grab Blog, Brandenburg on the Future of Recusal,
November l9, 2009 (where the executive director of justice at Stake describes the new
"tougher" recusal rules as a sign that Michigan is moving “forward instead of
backward.") (accessed November 23, 2009).
zgSee
(accessed November 23, 2009). Additionally, since December 4, 2008, regional
advocacy groups, including the joyce Foundation, have donated $400,000 to the Brennan
Center and $190,000 to justice at Stake. See Money and Polz`tz`cs Grants Lz`st
(accessed November
23, 2009).
30 See minutes 1202:25 to 1203:35 of the November 5, 2009 public administrative
conference at (accessed November 23,
2009).
19
Any effort to expand our new disqualification procedure is ill-advised The
Wisconsin Supreme Court, for example, recently rejected two proposals submitted by the
League of Women Voters of Wisconsin Educational Fund and former justice William
Bablitch respectively The League of Women Voters’ proposal would have required
justices to disqualify themselves if a lawyer, law tirrn, or party to a case donated more
than Sl,OOO or if a party contributed to "a mass communication that was disseminated in
support of the judge’s election" within the preceding two years. ln contrast, Justice
Bablitch’s proposal would have mandated recusal if a lawyer or party donated Sl(),OOO,
the legal limit for individual contributions to a judicial candidate’s campaign, and the
proposal would require recusal for certain third party expenditures.zl After a lengthy
public hearing, the Wisconsin Supreme Court instead adopted a proposal clarifying that
endorsements, campaign contributions, and independent ad expenditures, standing alone,
are not enough to require a justice to recuse himself or herself.” ln other states,
including Florida, committees continue to evaluate appropriate recusal procedures after
soliciting input from judges, attorneys, and legal scholars. 3 In light of the uncertainty in
various states concerning judicial disqualification procedures, the hasty adoption of these
rules today is imprudent and unwise
Finally, the rnajority’s action is a self-inflicted Wound. This rule will take the
honor from "your Honor." What foolish person would run for this Court and allow his or
her hard earned reputation to be sacrificed not by the slings and arrows of a vitriolic
election campaign, but at the hands of colleagues? S0 much for civility initiatives.
31 Adam Korbitz and Alex De Grand, State Bar of Wisconsin, Court to tackle recusal
issue and other rules petitions, October 2'7, 2009,
(accessed November 24, 2009); Patrick Marley, The
Milwaul
(accessed November 23, 2009).
32 Patrick Marley, State Hz`gh Court Says Campaign Donatz`ons Can’t Force Recusals,
The Milwaukee journal Sentinel ()ctober 29, 2009,

(accessed Noveml:)er 23, 2009).
33 Gary Blankenship, The Floiida Bar News, T o Recuse or not to Recuse: How to do it is
the Real Question, November l , 2009,
(accessed
November 23, 2009).
20
The people of Michigan cannot possibly benefit from this order. Today’s order is
a lacerating wound to this institution and the people of Michigan.$“ May God save these
United States, the state of l\/lichigan, and this honorable Court.
YOUNG, J., concurs with CORRIGAN, J.
YOUNG, J. (dissentz'ng). l respectfully dissent from the new majority's enactment
of this unconstitutional rule of disqualification In eliminating all due process
protections, compromising and chilling protected First Amendment rights, and
conducting secret appeals that might lead to the removal of an elected justice from a
case against his will, the majority has created a 21st Centu)y Star Chamber with its
new disqualification rule.
The issue here is not whether this Court should have a disqualification rule-we
have had a disqualification rule for 173 years that mirrored the rule that the United States
Supreme Court continues to use-but rather which disqualification rule best ensures that
parties whose cases are decided by this Court have neutral arbiters deciding those cases.
Every member of this Court purports to subscribe to the elementary principle of due
process that parties whose cases are decided by this Court must have impartial justices
deciding those cases.35 However, the plain fact is that the rule issued today is facially
unconstitutional in several critical ways, with the result that it will allow four justices
to disenfranchise the millions of Michigan voters who elected a justice. And it is also
the fact that the justices who voted for this rule-KELLY, CA VANAGH, WEAVER and
HATHA WA Y-enacted this new rule despite having knowledge that the rule was
constitutionally dejicz`ent.% The citizens of Michigan should be concerned when a
34 in the event the majority precipitates a constitutional crisis by purporting to oust a
justice from a case, I leave all my possible options open.
35 "A hearing before an unbiased and impartial decisionmaker is a basic requirement of
due process.” Crampton v Dep ’t of State, 395 Mich 347, 351 (1975).
36 There are two responses to Chief Justice KELLY’S claim that these constitutional
concerns were raised only at the "eleventh hour." First, as Justice CORRIGAN states, the
rule that the Court voted on was circulated to the Court just the day before conference
Second, Chief Justice KELLY’S suggestion that the Court has no obligation to consider
these constitutional objections, even if raised at the hearing, is an abrogation of the
obligation that each justice makes to uphold the federal and state constitutions.
Moreover, justice Marl (accessed November 24, 2009), to
21
majority of their Supreme Court is indifferent to the state and federal constitutions they
have been entrusted and have sworn to uphold.
The New Rule Violates the Fourteenth Amendment Right to Due Process
The removal of a sitting justice against his or her will is a serious matter trenching
upon the right to execute the duties of the office to which the justice was elected, as well
as an infringement on the rights of electors who placed the justice in office. A justice
subject to a motion for disqualification is entitled to the basic due process rights of notice
and opportunity to be heard.37 Heretofore, only an appeal to the United States Supreme
Court could reverse a Michigan justice’s determination regarding a motion to disqualify
in an appeal taken from a Michigan justice’s denial of a motion for disqualification, the
challenged justice is entitled to the full range of due process rights that all appellees
before the United States Supreme Court are entitled. A justice challenged on such an
appeal from his decision not to recuse therefore has a right to counsel, to file briefs in
opposition to the appeal, to have the issues on which the disqualification is predicated
framed in advance, and the right to have it decided by a neutral arbiter. T he new rule
eliminates all of these due process rights.
The new rule creates an appellate process whereby the members of the Michigan
Supreme Court, rather than the United States Supreme Court, will determine whether one
of their challenged colleagues may sit on a case. By interposing itself as an appellate
body in the disqualification decision, this Court must afford the targeted justice no fewer
rights than he enjoyed in such an appeal to the United States Supreme Court. As stated, a
justice has the right to have an appeal be limited to the grounds stated in the motion for
disqualification, to retain counsel in the rnatter, and to submit a brief in response to the
motion for disqualification Sometimes, due process will also necessitate an evidentiary
hearing, as there may be facts in dispute between the moving party and the challenged
justice. Notwiz‘hstanding these constitutional requirements of due process, the new
majority protected none of them, even though I specifically raised each of them to the
Court before this order entered and provided proposed language to the rule that would
remedy these constitutional deficiencies
determine whether Chief Justice KELLY or I have accurately described the discussion of
constitutional questions l raise herein.
As important, the Chief justice has refused to place on our next
administrative agenda my written proposals so that they can be considered by the
Court. This course of conduct underscores my contention that the new majority is
indifferent to the serious constitutional questions l and my colleagues in dissent have
placed before thein.
37 ""l`he fundamental requisite of due process of law is the opportunity to be heard."’
D0w v State of Michz'gan, 396 Mich 192, 205 (1976), quoting Grannz's v Ora’ean, 234 U.S.
385, 394 (1914). "The ‘opportunity to be heard’ includes the right to notice of that
opportunity." Id.
22
Moreover, if due process means anything-particularly in the disqualification
setting where this issue is pivotal--a targeted justice is most assuredly entitled to have an
impartial arbiter decide the question When the United States Supreme Court is the
arbiter, no serious question on this point arises. However, when the justices of this
Court become the arbiters of a disqualification decision of one of its members, there
are substantial questions whether an impartial arbiter is involved. lt is no secret that
this Court is riven with deep philosophical, personal, and sometimes frankly partisan
cleavages.38 \?Vhere personal and political biases could affect the decision-making of
members of this Court in the new disqualification appeal process, l cannot imagine that
due process demands anything less than the right to challenge the potential biases of the
decision-makers in this appellate procedure Yet the new rule provides no mechanism for
challenging the bias of a member of this Court in the appeal process it establishes today.
At the November 5, 2009 administrative conference, the new majority specifically
repudiated Justice MARKMAN’S proposed amendment addressing this issue. The new
majority also refused to consider all of the specific due process rules l later proposed in
writing T he majority ’s open rejection of these basic constitutional protections
indicates that it is willing to sacrifice essential requirements of due process in enacting
this rule. T he open question is why.
38 justice WEAVER has already gone on record stating that I ought "to recuse [myself in a
case] in which Mr. Fieger is himself a party" because of campaign remarks l made in
2000. Grz`evance Aclminz`strator v Fz`eger, 476 Mich 231, 328 and 340 (2006) (WEAVER,
J. dissenting). See also State Automobile Mut Ins C0 v Fz`eger, 477 Mich 1068, 1070
(2007). She has also gone on the record as dissenting from my participation in cases
"where Mr. Geoffrey N. Fieger’s law firm represents" a party. Ansarz` v Gold, 477 Mich
1076, 1077 (2007). See also Flemister v Travelz`ng Med Services, 729 NW2d 222 (2007);
Short v Antonz'ni, 729 NWZd 218 (2007); johnson v Henry Ford Hosp, 477 Mich 1098,
1099 (2007); and T ate v City of Dearborn, 477 Mich ll0l, 1102 (2007). As l note
below, Mr. Fieger and his firm have been responsible for nearly all the disqualification
motions filed during my tenure on the Court. All have been based on campaign speech
and all have been unsuccessful here and in the federal courts, including the United States
Supreme Court, where he appealed my denials.
Other of my colleagues have made explicitly hostile partisan comments. See, for
example, our Chief Justice’s recent comment wherein she promised to "undo a great deal
of the damage that the Repubiz`can Court has done." Brian Dicl (accessed Novernber
19, 2009).
24
inherently a nebulous standard,“ the "appearance of irnpropriety" standard is not a
constitutional standard.‘”
Thns, even if the challenged political speech in no way implicated actual bias
against a party (or any other constitutional right of such a party), an elected justice is
still liable to be disqualified if his campaign comments were later determined to create
an appearance of impropriezfy. lt is not hard to contemplate campaign speech that might
offend and later be considered "improper" under the new rule’s standard. 3
Moreover, the mere threat of future disqualification produces a chilling effect on
protected speech. The United States Supreme Court’s decision in Republz`can Parzy of
Mz`nnesota v l/Vlzz'te struck down the Minnesota Supreme Court’s rule forbidding an
incumbent judge or candidate for judicial office from "announo[ing] his or her views on
disputed legal or political issues" during an election campaign/m \Nhile the Minnesota _
41 We cannot even be sure that the justices who voted for the rule understand its own
implications. See, e.g., note 23, infra.
42 Even the rule’s proponent, Justice HATHAWAY, recognizes that "appearance of
irnpropriety" is an extraconstitutional standard At our November 5 , 2009 administrative
conference, Justice HATHAWAY explained, "Caperton says that states can have stricter
standards [than due process requires]. . . . We have Canon 2 of the Michigan Code of
Judicial Conduct, which talks about a judge having to adhere to the appearance of
impropriety standar ." Justice HATHAWAY clearly believes that the appearance of
impropriety does and should tramp Fz`rst Amendment rights. So, apparently, do her
colleagues in the majority
43 l made this very point in my statement concerning a disqualification motion addressed
to Justice HATHAWAY. See Um`ted States Fidelity & Guaranty C0 v Michigan
Catastrophz`c Claims Ass ’n (On Rehearing), 484 Mich l, 60 (2009) (staternent of YOUNG,
J.). in fact, journalists looking at Justice HATHAWAY’S campaign statements questioned
whether she could be fair and impartial to all parties An article written on the occasion
of Justice HA'I‘HAWAY’S investiture suggested that "[i]n her campaign .. . Hathaway
seemed to take sides She suggested that, if elected, she would be the ‘voice’ of and
stand up for ‘middle-class families,’ instead of ‘siding with big insurance companies and
polluters’ and ‘big corporations."’ Todd Berg, Diane M. Hathaway Sworn in as
Michigan Supreme Court’s ]O¢!th Justice, Michigan Lawyers Weekly, January 12, 2009.
lt will be interesting to see how Justice HATHAWAY fares under the new recusal standard
she has championed if challenged by the very parties she stated she would "side against"
if elected.
44 Republican Par!y of Minnesota v Whz`z‘e, sapra, 536 US at 768.
25
Supreme Court’s restriction on campaign speech was more expressly content~based than
the rules promulgated by this order, the new majority here is attempting to achieve
indirectly what the United States Supreme Court declared in White that a court could
not do directly: stij‘le protected judicial campaign speech. The new "appearance of
impropriety" standard is so broad and vague that judges and judicial candidates will be
forced to self~limit their campaign speech so that, once they are elected, they can actually
exercise the duties of the office they have sought Thus, this rule is facially
unconstitutional because it expressly allows a jurist’s First Amendment right to free
speech to be subordinated to a nonconstitutional standard T he new majority is
untroubled by this obvious abridgement of First Amendment rights that their new rule
causes. Again, the question remains how the new majority could be so unconcerned
about such a serious matter.
The Michigan Constitution Does Not Allow this Court to Remove a Justice
from an Individual Case
Under the Michigan Constitution there are at most four ways a duly-sitting justice
may be removed against his or her will:
- The People can choose not to reelect that justice."$
- The House can impeach a justice "for corrupt conduct or for crimes or
misdemeanors" by majority vote. Upon impeachment, a judicial officer is
forbidden from "exercis[ing] any of the functions of his oft'ice...until he is
acquitted." The Senate can permanently remove a justice from office by a two-
thirds vote/m
45 Const 1963, art 6, § 2; "The supreme court shall consist of seven justices elected at
non~partisan elections as provided by law. The term of office shall be eight years . . . ."
46 Const 1963, art ll, § 7:
The house of representatives shall have the sole power of impeaching civil
officers for corrupt conduct in office or for crimes or misdemeanors, but a
majority of the members elected thereto and serving therein shall be
necessary to direct an impeachment . . . No person shall be convicted
without the concurrence of two~thirds of the senators elected and serving
Judgment in case of conviction shall not extend further than removal from
26
- The House and Senate can enact a concurrent resolution removing a justice
"{t]or reasonable cause" that "is not sufficient ground for impeachmeut" by a
vote of 2/3 of the members elected to each house, at which time the governor
"shall" remove the justice.‘w
- This Court can remove a justice from the Court upon recommendation of the
Judicial Tenure Commission."g
Notably, these constitutional provisions only refer to removal of a justice from all cases,
not from a particular individual case, as this order allows. It is important to note,
however, that there is no provision in the Michigan Constitution that explicitly allows this
Court to overturn the elective will of the People and remove a justice from an individual
case, nor is there any language that would even implicitly provide such authority
Significantly, the Michigan Constitution has provided extra protections for judicial
officers that no other officeholder enjoys. And it is not hard to imagine why the Pecple
would want to insulate judicial officers from political attacks that would impede their
ability to discharge their duties of office Accordingly, our Constitution acknowledges
the primacy of judicial office--even as between judicial office and executive or
legislative ojj‘z`ces. lt expressly precludes the recall of judges by Michigan voters while
allowing the recall of all other elective officers."'g ln other words, the People have
decided that, once they have elected a justice, that decision is final, at least for the
duration of the justice’s eight-year term. This extraordinary constitutional protection for
judicial office is an important backdrop against which to assess the new majority’s
asserted right to prevent a sitting justice from exercising the duties of his office, lf
statewide judicial elections are to mean anything, it should not be up to four justices to
office . . . . No judicial officer shall exercise any of the functions of his
office after an impeachment is directed until he is acquitted.
47 Const 1963, art 6, § 25: "For reasonable cause, which is not sufficient ground for
impeachment, the governor shall remove any judge on a concurrent resolution of two-
thirds of the members elected to and serving in each house of the legislature The cause
for removal shall be stated at length in the resolution."
48 Const 1963, art 6, § 30(2): "()n recommendation of the judicial tenure commission, the
supreme court may . . . retire or remove a judge . . . ."
49 const 1963, an 2, § s.
27
pick and choose when to allow the will of the People to be heard and when to stifle that
will. By creating through court rule the power to remove justices from individual cases,
the majority has done just that.
The authority of this Court to remove an elected justice from a particular case is,
therefore, highly questionable. ln issuing its new recusal rules, the new majority has not
adequately considered, much less justified, the authority of the Court to remove a justice
in a particular case, especially since such removal by the fiat of four silences the People,
who elected seven particular justices to the Court, who are not fungible. l am not sure by
what logic an administrative rule may be used to amend our Constitution and create a
new authority whereby an elected justice can be removed from a case by his co-equal
justices While justices are constitutionally protected from political attacks from
without, the new majority has conceived a clever means to launch political attacks from
within the Court, giving a majority of four justices the ability to disenfrunchise millions
of Michigan voters by removing their elected justices from hearing cases that will
affect their daily lives.
The NeW Rule Will Enhance Gamesmanship That Will Undermine the
Integrity of J udicial Elections and This Court
The new disqualification rule is simply bad policy that is the product of a
manufactured crisis. Although it purports to ensure that only impartial justices sit on
cuses, the new rule has the effect of “)veaponizing” disqualification as a tool to achieve
countermajoritarian results to nullify electz'ons. Shockingl_y, my colleagues have set
themselves up as the gumzers on the artille)y they have monufactured.
For the entire existence of our Court, the justices of the Michigan Supreme Court
have conscientiously striven to address questions of judicial qualification,whether raised
on motion by a party or by the justice. They have done so under our unvaried practice
that mirrors the one used by the United States Supreme Court.$o ln short, a justice
confronted with a disqualification motion has typically consulted with members of this
Court and made a determination whether participation in a particular matter was
appropriate Other than providing their personal counsel, other members of the Court
have not participated in the decision
Until recently, no one has challenged, or apparently had reason to challenge, the
Court’s historical practice for addressing the issue of a justice’s disqualification Of late,
50 See johnson v Hen)y Ford Hosp, 477 Mich 1098, 1099 (2007). See also Statement of
Recusal Policy, United States Supreme Court, November l, l993, available at 483 Mich
1237.
28
however, with the shift in the philosophical majority of this Court,§' disqualification has
taken on a new, more politicized role. One need look only as far as a recent volume of
the Michz`gan Bar journal for evidence of this new effort to politicize disqualification
motions. ln a letter to the editor, attorney John Braden suggests that the judicial electoral
process is an unsatisfactory solution for addressing what he believed to be the
unfavorable philosophy and decisions of the Court’s fenner philosophical majority.'<'z
'l`herefore, he urged his colleagues in the Bar to use motions to disqualify as a suitable
alternative to the electoral process guaranteed by the Michigan Constitution to alter the
philosophical balance of the Court in order to achieve what he desired: more favorable
results for his clients and himself. Moreover, it is entirely foreseeable that sophisticated
and well-financed clients, like insurance companies and unions, will demand that their
lawyers file motions for disqualification as a matter of course in order to alter the
philosophical makeup of the Court in ways the electorate hardly intended _Thus, today ’s
order is no less than a call for the use of disqualification as a non~electoral political
weapon to remove judges with whose judicial philosophy one disagrees My
colleagues, wittingly or not, in enacting this new rule, give aid to this politicized use of
disqualification motions
Why do I claim that the new disqualification rule is a product of a "manufactured
ciisis"? The facts are very p1ain. After the Court’s philosophical majority changed in
1999, disqualification motions became a tactic to alter the decision-making and outcome
of a particular case. As l explained in my statement accompanying the proposed
disqualification rules when originally published for public cornment, each of the motions
to disqualify made between 1999 and 2008 were brought against members of what was
51 lt is no secret that the philosophical majority of this Court changed with the 1998
Supreme Court election The philosophical transformation of the Michigan Supreme
Court that occurred eleven years ago, and the debate that has accompanied that
transformation-»a debate similar in some ways to that taking place within the federal
judicial system--resonated strongly in the electoral political process, which the citizens
of Michigan, through their constitution, have chosen as the method by which they select
their justices Perhaps not surprisingly, those who had been most comfortable with the
approach of the Michigan Supreme Court over the previous decades were resistant to this
transformation, and many responded forcefully in political opposition. The 2000
Supreme Court election, in which three members of the Court’s prior philosophical
majority stood for election, was one of the most bitterly contested in the state’s history, as
was the most recent Supreme Court election.
52 see opinion and niss@nr, ss Mich a J 10, 12 (2006).
29
then the Court’s philosophical majority.” Importantly, nearly all of the motions to
disqualify brought during my tenure on this Court were the product of one law firm
Each of the motions to disqualify made by this firm involved various allegations
of claimed bias, principally stemming from political speech in Michigan Supreme Court
judicial campaigns.“ This firm has taken advantage of the review process that our
traditional disqualification practice guaranteed parties, by appealing my previous denials
of its motions to disqualify to the United States Supreme Court at least three times
Notably, that Court has denied certiorari on each occasion.$§ Moreover, this finn has
unsuccessfully challenged in federal court the constitutionality of this Court’s historic
practice of handling motions for judicial recusal that the Court today is jettisoning.%
While the United States Supreme Court has denied these meritless claims of bias directed
at me, as its decision in the Caperton case demonstrates, when warranted, the United
53 Proposals Regarding Procedure for Disqualiiication of Supreme Court Justices, 483
Mich 12()5, 1236 (2009). Since this statement, three additional motions for
disqualification have been filed with the Court: an additional motion by the law firm
described above to disqualify Justices and CORRIGAN and myself, and two
separate motions to disqualify Justice HATHAWAY.
54 In addition to a motion to disqualify me in the pending case of Pellegrino v Ampco
Systems Parkz'ng (Docket No. 137111), by counsel’s own admission, he has filed motions
for my recusal in the following cases: Tate v Cz`).'y of Dearborn, 477 Mich 1101 (2007);
Johnson v Henrjy Ford Hosp, 477 Mich 1098 (2007); Flemz'ster v Travelz`ng Med Servz`ces,
729 NWZd 222 (2007); Shorr v Antonz`nz', 729 NWZd 218 (2007); Ansarz' v Gold, 477
Mich 1076 (2007); State Auz‘omobz`le Mut Ins Co v Fc`eger, 477 Mich 1068 (2007)',
Grievance Admz`nistrator v Fz'eger, 476 Mich 231 (2006); Lewz's v St john Hosp, 474
Mich 1089 (2006); Heikkz`la v North Star Trucking, Inc, 474 Mich 1080 (2006); Stamplz`s
v St John Health Sys, 474 Mich 1017 (2006); McDowell v Detroz`t, 474 Mich 999 (2006);
Harter v Grand Aerie Fratemal Order of Eagles, 693 NW2d 381 (2005); Gilberz‘ v
DaimlerCkrysIer Corp, 469 Mich 883 (2003); Graves v Warner Bros, 469 Mich 853
(2003).
55 Graves, supra, cert den 542 U.S. 920 (2004); Gilberz‘ v Daz'mlerC/i);vsler Co);z), supra,
cert den 546 U.S. 821 (2005); Grz'evance Admz`nistrator v Fieger, supra, cert den 127 S. Ct.
1257 (2007).
56 see Fzeg@r v Fen»y, 2007 WL 2327/301 (E o Mi¢h, 2007).
30
States Supreme Court is not uninterested in reviewing and reversing a state justice’s
decisions on disqualitication.”
Finally, it is not beyond imagining that the new disqualification procedure will
become fuel for the ever-intensifying fire of judicial election campaigns in Michigan.
For example, if Candidate A is running a campaign against Justice B, it is entirely
possible that Candidate A would make a campaign issue over the number of times that
Justice B’s colleagues voted that he could not be an impartial arbiter of a case. Although
the new majority would no doubt deny it, the new rule it enacts today creates ample
ammunition for future judicial electoral warfare.
The New Rule was Enacted with Unseemly Haste and in Violation of the New
Majority’s Commitment to "Transparency"
l close with a final point about the new majority’s methods in enacting the rule
contained in today’s order. So eager was the new majority to enact this unconstitutional
rule that they did so with unseemly haste.$g They not only ignored the obvious
” see caperton v A J"Meesey coal Ce, _____ us ___, 129 s cr 2252, 173 L ed 2a 1203
(2009).
58 Furthermore, the arrogance that characterizes the majority’s eagerness to enact new
recusal rules without even understanding their content is utterly astounding. The
following exchange occurred at our November 5, 2009, administrative conference, when
1 sought clarification regarding how the new "appearance of irnpropriety" standard would
actually work:
Justice HATHA WAY. If there is an appearance of impropriety, then you
cannot sit on a case.
Justice YOUNG. And from what perspective is the appearance of
impropriety standard‘? Is it a subjective standard? Is it an objective
standard‘?
Justice HATHA WA Y. I haven’t thought through all that to be honest with you,
to answer you here.
justice YQUNG. But we’re going to vote on this today.
Justice HA YHA WA Y. Then let's vote.
31
constitutional problems l and Justices CORR!GAN and MARKMAN had brought to their
attention, they enacted the rule in violation of this Court’s public administrative process
The order issued today does z_'z_q_z_‘ contain the rule this Court voted on in its November 5,
2009 public administrative conference.
The disqualification rule approved at our Novernber 5, 2009 administrative
conference included my amendment to subsection (D)(I). When the motion to approve
Justice HATHAWAY’S proposed version of the rule was m0ved, it was explicitly subject to
a friendly amendment I offered (which amendment Justice HATHAWAY accepted)
regarding the language of subsection (D)(l). My amendment provided that the actual
language of subsection (D)(l) of the rule would be determined at a later date after
conferring with Justice HAIHAWAY. ln proof of this, l offer the following exchange that
occurred at our November 5, 2009 public administrative conference when we voted on
her proposal:
ChiefJustz`ce KELL Y. Can we act on the motion at this point? Shall we start,
Justice Hathaway?
Justice HATHA WAY. Well, first I’m going to include Justice Young’s . . .
Justice WEA VER. Well, no, you can just let him bring it up next tirne. .lust
keep it as it is.
Justice HATHAWAY. l move that this Court adopt my November 4, 2009
version of alternative C as Michigan Court Rule 2.003 regarding
disqualifications of judges
Justice WEA VER. Second.
justice HAZHA WAY. And I support.
Justice YOUNG. With a friendly amendment we can work ouz‘.
justice HA THA WA Y. Right. Regarding (D)(]).
ChiefJustz'ce IQJLLY. l think we’ve discussed this issue. Would you like to
vote? [Roll call vote omitted.] lt passes by a 4 to 3 vote. We have a new
As this exchange indicates, the members of the new majority are less interested in
understanding how the rule actually works than in pushing through immediate adoption
of these unconstitutional and ill-advised rules, whatever the cost, in order to supplant a
practice that has served this state well for 173 years.
32
recusal rule. We will take it up again at next month 's meeting for further
discussion at least of (D)( 1 ).{5 3
'l`hus, this Court did not vote on a complete rule in our November 5, 2009 administrative
conference.éo
As this exchange shows, there remained a significant procedural issue to resolve
before an order effectuating a new disqualification rule could enter and be given
immediate effect the actual language of subsection (D)(l) must still be settled.m Chief
Justice KELLY acknowledged this and stated on the record that the rule would be returned
to our December administrative conference to resolve the language of subsection (D)(l).
All of this was done in open Court, and members of the public are invited to verify
whether I have accurately represented the proceedings and vote by accessing the video
recording of the administrative conference from the State Bar of Michigan ’s "Virtual
Court. "6
Therefore, I believe that issuing an order today before resolving the status of my
amendment is improper and a contravention of the Court’s commitment to conduct its
administrative matters in public. T he issuance of the order today enacting this new
disqualification rule that was not approved in open Court belies any pretense that this
Court is functioning "transparently. "
Given the stated desire of this rule’s proponents for having this Court’s business
done "in an open, transparent, restrained, orderly, fair, and efficient manner,"`f§ there is
59 Emphasis added.
60 Once the language of the rule is tinalized, however, it is to have immediate effect, as a
subsequent majority vote determined.
61 Justice WEAVER wanted an order that was retroactive to the November 5, 2009 vote on
the new rule. No other justice supported her position. A court speaks through its orders
johnson v White, 430 Mich 47, 53 (1988). The vote to establish a new disqualification
rule cannot be given immediate effect without an order. The order being entered today is
being given immediate effect, as desired by the majority. Whatever the timing of the
order’s effective date, my point is that this order does not reflect the actual vote on
Noveml)er 5, 2009.
62 http://wv\rvv.michbar.org/courts/virtualcourt.cfm (last accessed November 23, 2009).
63 Justice WEAVER’s dissenting statement to the minutes of November 13, 2008
conference, available at (accessed Novernber 19, 2009).
33
another important aspect of this new rule that violates the new majority’s alleged interest
in transparency: T he rule enacted today permits an elected justice of this Court to be
removed from a case in secrec}g. At our Novernber 5, 2009 conference, Justice
MARKMAN proposed and the new majority repudiated an amendment that would require
all appeals of a justice’s initial decision to deny a motion for disqualification to be heard
in an open session of this Court. So much for the openness and transparency that the new
majority has continuously trurnpeted.
Finally, as its proponents admit, this order is but an opening salvo for additional
radical changes to this Court, including the unconstitutional replacement of an elected
justice with some other judge not elected to the Supreme Cour't.é'l At our November 5,
2009 administrative conference, Chief Justice KELLY indicated her support for the new
disqualification rule but also reiterated that it was only "the first step in the realization of
a truly excellent rule." She considers it "essential" for this Court to have a rule that
would allow the "replac[ement off a disqualified justice with another judge for the
purpose of hearing the case involved." As Justice CORRIGAN explained in great detail in
her statement on the proposed disqualification rules,é$ unlike other states, the People of
Michigan have not authorized this Court to appoint temporary justices. Rather, the
Michigan Constitution provides that "[t]he supreme court shall consist of seven justices
elected at non-partisan elections as provided by law."66 Thus, this order appears to be
preparatory for additional unconstitutional changes to this Court that would further
disenfranchise Michigan voters.
This is truly a sad day for this Court, the citizens of Michigan, and for the judicial
elective system that our citizens as sovereign have mandated For all of these reasons, l
dissent
CORRIGAN, .T., concurs with YoUNG, J.
MARKMAN, J. (dissentz`ng). In place of a judicial disqualification rule that has
worked satisfactorily for over 175 years to ensure an honorable Michigan Supreme Court
64 As I explained in my statement accompanying the three proposed rules, Proposals
Regarding Procedure for Disqualification of Supreme Court Justices, 483 Mich 1205,
1236 n 2 (2009): “[T]Wo of [my] colleagues have made the radical proposal that justices
can be replaced by other judicial officers See Adair v State of Michigan, 474 Mich
1027, 1045, 1051 (2006)."
65 Proposals Regarding Procedure for Disqualification of Supreme Court Justices, 483
Mich 1205, 1229-1234 (2009) (statement by CORRIGAN, J.).
66 coast 1963, an 6, § 2.
34
and that remains employed by the United States Supreme Court and the majority of other
state supreme courts, the new rule adopted by the majority, by establishing justices as the
reviewing authority for the disqualification decisions of other justices and by adopting a
vague "appearance of impropriety" standard applicable to all judges throughout the state:
(a) will incentivize disqualification motions and thereby produce a considerable increase
in the number of such motions and in the amount of time and effort devoted by this Court
to addressing such motions; (b) will introduce an unprecedented degree of gamesmanship
and politicization into the judicial process by enabling attorneys to influence which duly~
elected justices will be allowed to participate in deciding their own cases and
controversies; and (c) will seriously undermine the collegiality of this Court. in the end,
the new rule is far more likely to reflect adversely upon the integrity of this Court than it
is to enhance this Court’s standards of conduct.
Aithough I opposed the adoption of the new rule, recognizing that there was
majority support, I did move for the adoption of four amendments Each of these was
rejected by the same 4-3 vote. Most irnportantly, in my judgment, the majority refused to
adopt the following amendment:
All disqualification decisions other than the challenged justice’s own
initial decision shall be decided in public administrative session.
For this Court to disqualify an elected justice of this Court from participation in a case
constitutes an action of extraordinary significance in a democratic system of judicial
selection and should be undertaken in as open and as transparent a manner as possible.
Indeed, it is hard to imagine a more consequential decision of this Court than that of
some justices disqualifying an elected and coequal colleague In view of the emphasis on
transparency that has motivated this Court to adopt open administrative hearings, l cannot
think of an action that more compellingly requires an open decision~making process than
that of determining which justices will, and which justices will not, be allowed to
participate in a case. The people are entitled to know why a justice whom they have
elected to serve on this Court has been deprived of this right, and they are entitled to the
opportunity to assess the rationale and motives of those who have rendered this judgment.
The majority also rejected the following amendment
A justice shall raise the issue of another justice’s
disqualification within 14 days after the fenner discovers the
alleged basis for disqualitication, including where a justice
discovers the alleged basis during a non-public conference of
the Court.
This amendment would have made clear that a justice may raise the issue of another
justice’s disqualification and that such disqualification could be predicated upon
inappropriate conduct or behavior reflected during closed conferences. Tellingly, the
single justice on this Court who has repeatedly cast public aspersions upon colleagues on
the basis that they have committed unspecified misconduct and misbehavior at closed
35
conferences not only voted against this amendment, but also voted against the
amendment requiring public deliberation on disqualification motions. Under this
amendment, in the event a justice exhibits bias or prejudice for or against a party or an
attorney, another justice would have 14 days from when they first became aware of this
to move for that justice’s disqualification Absent an opportunity for a justice to sua
sponte challenge the participation of another justice, statements of genuine bias or
prejudice made in the context of confidential case discussions cannot be addressed, and
attorneys exclusively will control the flow of disqualification motions, in particular, the
few attorneys who have demonstrated a disproportionate inclination to repeatedly
offering disqualification motions. Moreover, MRPC 8.3(1)) requires "[a] lawyer having
knowledge that a judge has committed a significant violation of the Code of Judicial
Conduct that raises a substantial question as to the judge’s honesty, trustworthiness, or
fitness for office [to] inform the Judicial 'l`enure Commission." Given that the justices
of this Court are all lawyers, it seems clear that our rules of conduct require us to raise
disqualification issues if we believe that a justice should be disqualifying himself and is
not doing so.
The majority likewise rejected the following amendment
Participation in a disqualification decision is subject to the
same disqualification procedures as are applicable to a
justice’s participation in a particular case.
This amendment was intended to ensure the integrity of the disqualifying justices with
reference to the justice whose disqualification is being sought. F or instance, if Justice A,
the subject of a disqualification moti0n, believes Justice B is prejudiced against hjrn, or is
himself partial for or against lawyers or parties in a particular case, Justice A in fairness
ought to be perinitted to challenge the propriety of Justice B’s participation in the
disqualification decision. For instance, if Justice A may be disqualified from
participation because he received a campaign contribution from a particular lawyer or
party, it cannot be proper for Justice B, whose opponent received a contribution from that
same lawyer or party, or who himself received a contribution from the opposing lawyer
or party, to participate in the disqualification decision. individual justices, no less than
lawyers and parties, are entitled to a fair hearing before their rights are adjudicated, and
this cannot be obtained if there is a conflict of interest between himself and the decision
mal(C)(l)(b)(ii)? That
is, if a judge would be required to disqualify himself if he has been a member of that law
finn within the preceding two years, presumably because the chance of bias would be too
substantial to allow his participation, could it truly be said that there was no longer any
"appearance of irnpropriety" where that judge has not been a member of that law firm for
two years and one month‘? ls that one month sufficient to alleviate any "appearance of
impropriety"? Who lLeot;e):s@de!ne>xs.i§om
© Copyright 2009 The Detroit News. Ail rights reserved.
http://detnows.corri/articie/ZOOQ1 1 l9/OPINIONO1/91 1 190343 &template=printart 1 I/20/2009
APPENDIX C
STATE OF MICHIGAN MEMORANDIJM
SUPREME COURT FOR COURT USE ONLY
'l`(): The Justices DATE: Novernber 2, 2009
cc: Corbin Davis, Mike Sclunedlen, and
Danilo Ansclmo
FROM: Justice Maura Corrigan
SUBJECT: ADM 2009~04, #3 on l l/5/09 administrative agenda
ln light of my call for iiirther study of Caperton v A TMassey Coal Co, Inc, 556 US ____
(2009); 129 S. Ct. 2252 (June 8, 2009),1 I would like to share my follow-up research with regard
to whether and how Caperz‘on bears on courts’ general recusal policies The Caperz‘on opinion
itself, courts’ and commentators’ interpretations of Caperton, and court practices in the wake of
Cczperton have convinced me that Caperton applies very narrowly and does not suggest that due
process requires us to change our recusal practices Indeed, this Court would be a true outlier if
we read Caperton to require evidentiary hearings or a vote by the full Court in order to resolve
recusal motions consistent with due process principles The fact that Capertorz does not require
such changes to our historical recusal practice provides additional support for my vote in favor
of alternative A.
Pirst and foremost, the Caperton majority took pains to explain the limited nature of its
holding Indeed, it devoted Part IV of the opinion to clarifying that the Court’s "decision today
addresses an extraordinary situation where the Constitution requires recusal." Slip op at 16. lt
1 See my statement accompanying the order denying the motion for recusal in United
States Fz`delity Insurance & Guaranty Co v Michz`gan Caz‘astropkz`c Clar`ms Assoc, 484 Mich l,
49-60 (2009).
specif`ied: "the facts now before us are extreme by any rneasure." [d. at 17.2 Otherwise, it
acknowledged that "‘most matters relating to judicial disqualification [do] not rise to a
constitutional level."’ Id. at 6, quoting FTC v Cement Insritute, 333 U.S. 683, 701 (1948).
Recall that Caperton held that a state supreme court justice was disqualified from
hearing a case involving a corporate party whose chairman and CEO made "extraordinary
efforts to get [the justice] elected" by expending $3 million to support the justice’s campaign
Ia'. at 2-3, ll. Caperzon explicitly limited itself to "tlie context of judicial elections," z'd. at ll,
and, more specifically, to extreme facts when a party directs or significantly contributes to a
campaigi while that party’s case is pending. See z`d. at 13 ("Not every campaign contribution
by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an
exceptional case."), 14 ("{Tlhere is a serious risk of actual bias when a person with a
personal stake in a particular case had a significant and disproportionate influence in placing the
judge on the case by raising funds or directing the judge’s election campaign when the case was
pending or innninent."), 15 ("Tlie temporal relationship between the campaign contributions,
the justice’s election, and the pendency of the case is critical."), 17 ("The parties point to no
other instance involving judicial campaign contributions that presents a potential for bias
comparable to the circumstances in this case.")
Accordingly, I tend to agree with the following observations by former 'l`exas Chief
Justice Thomas Phillips, who authored the anxious brief in Capertc)n on behalf of the
Cont`erence of Chief Justices, concerning the limited scope of Caperton:
2 And see :'d. at 17 ("[E]xtreme cases often test the bounds of established legal
principles, and sometimes no administrable standard may be available to address the perceived
wrong"; "[t]his Court’s recusal cases deal[] with extreme facts .").
2
Some have suggested that judges can never rule in any case where parties
to a case or their attorneys are donors. It does no such thing. The holding, as l
read it, is that due process is onlv violated when "lll a person 121 with a personal
stake in a particular case 131 had a significant 141 and disproportionate influence
151 in placing the judge on the case 161 when the case was pending or
irnminent." Given how narrow that holding is, l’m not sure Caperton will ever be
direct precedent for another recusal. [Coping With ‘Caperton’: A Q&A With
Fonner Texas Chief Justice, Tony Mauro, The National Law Journal
june ll, 2009.]
Cases interpreting Caperz‘on have reached similar a conclusion, that is: Caperton is
limited to extreme facts in the context of campaign support in judicial elections For just a few
examples see Rhiel v Hook (In re Johnson), 408 BR l23, 127 (Bankr, SD Ohio 2009)
(Caperton is limited to “the specific issue of recusal ‘in the context of judicial elections"’); Ala
Dep’t of Pub Saj%z{y v Prz`nce, 2009 Ala Civ App LEXIS 510 (Oct 2, 2009) (quoting Chief
justice Roberts’ dissent to observe that it is unclear whether Caperton applies beyond financial
support in judicial elections but, in any event, the majority made clear that Caperton was "an
exceptional case" that presented “extreme t`acts" and concluding that the facts in the case before
it "are not the ‘extreme facts’ of Caperton"); Marek v Florida, l4 So 3d 985, 1000 (Fla 2009)
(rejecting a defendant’s claim that his constitutional right to due process was violated under
Caperton when the same judge presided over his 1984 sentencing and the 1988 evidentiary
hearing on his initial motion for postconviction relief; Caperton ’s "extraordinary facts
regarding a litigant’s campaign contributions to a state supreme court justice" are "irrelevant"
to this case); South Dakota v Lz`st, 2009 SD 73, 8 (SD 2009) (citing Caperton for the
proposition that "rnost matters relating to judicial disqualification {do] not rise to a
constitutional level").
Perhaps most signiiicantly, the few state courts l have discovered that have publicly
considered whether Caperton bears on their recusal practices have primarily addressed the
case’s ramifications for rules concerning contribution limits to judicial elections 'l`hese states
have not read Caperton to require evidentiary hearings or a vote by unchallenged judges or
justices.z Por example, the Supreme Court of Nevada’s Commission on the Arnendment to the
Nevada Code of Judicial Conduct issued a supplementary report recommending two additional
rule changes in response to Caperton; both changes address recusal on the basis cfa judge’s
financial or electoral campaign support from a party or attorney." Sirnilarly, on October 28,
2009, the Wisconsin Supreme Court conducted a hearing on petitions asking whether to amend
the Supreme Court Rules concerning judicial campaign contributions and whether there are
circumstances when recusal is required if a party or lawyer in an action "previously made a
campaign contribution to or spent money on a media campaign relating to a judicial election for
3 At least one state also considered, but rejected, rephrasing its general recusal standards
in reaction to Caperton. According to a Septembcr 2009 report from the washington Supreme
Court Task Force on the Code of Judicial Conduct, a minority of the task force would have
adopted the 2007 ABA Model Code for Rule 1.2 of the Code of Judicial Conduct on Promoting
Confidence in the Judiciaiy; based in part on Caperton, the version of the rule preferred by the
minority would direct judges to avoid not just impropriety, but the "appearance of impropriety."
See20Sept%2009.pdf> (accessed October 28, 2009). The proposed new Washington
State Code of Judicial Conduct also addresses disqualification of a judge on the basis of
monetary campaign support in excess of the statutory direct contribution limits. See proposed
Rule 2.l I(A)(¢l) and comment 171, (accessed November 2, 2009).
The Chief Justice of the Supreme Court of Ohio informed me that Ohio’s high court
discussed Caperton formally once and decided not to take any action; Ohio’s justices, like
myself, are interested to see whether other states find reform necessary.
° See (accessed
November 2, 2009).
a judge who is presiding in the case."$ But thus far, my research has not revealed that any state
supreme court has read C¢zperton even to potentially require evidentiary hearings or a vote of
the fuil Court. It is worth further noting that the United States Supreme Court appears not to
have amended its own recusal process»--which comports with our own historical practice-in
the wake of Caperton.‘
Along these lines, I again note the comments, published by Michigan Lawyers Weekly,
of Wayne County Assistant Prosecuting Attorney Timothy Baughman concerning Caperton:
Caperton is a case about standards and not about the identity of the
decision~maker. . . .
* * al=
Nothing in Caperton requires that the decision on a recusal motion be
reviewed by another justice or body of justices For the Michigan Supreme Court
ftc continue] to follow the practice of the U.S. Supreme Court is perfectly
persrnissible, so long as a system of "objective rules" exists [‘Caperton' was
about recusal standards, not decision maker, Michigan lawyers Weekly, june
22, 2009, p 7.] '
For these reasons, my study of Caperton convinces me that it does not require any
changes to our recusal rules. Accordingly, I reiterate my support for alternative A in this iile,
5 See (accessed October 29,
2009), rule petitions 08-16, 08-25, 09~10 and 09-11. The originating petition, 08-16, appears to
have been filed before Caperton was decided, but the Court accepted an amendment the
petition in light of Caperton. See (accessed October 29, 2009).
‘ The primary difference between our practice and that of SCOTUS is the fact that a
party who wishes to challenge a Miehigan Supreme Court justice’s recusal decision has another
level of recourse; he may appeal that decision to SCOTUS. Thus l find it particularly
noteworthy that SCOTUS has not concluded that due process requires unchallenged SCOTUS
justices to bless or reverse an individual SCOTUS justice’s recusal decision although there is no
higher body to which the movant may appeal the decision Clearly SCOTUS continues to
believe that individual justices are generally competent to decide motions for their recusal.
5
which effectively codifies our historical recusal practice and does not require a vote of the
Court under any circumstances
APPENDIX A
MEMORANDUM
`l`O: The Justices
cc: Corbin Davis & Mil536 U.S. 765 (2002)." This is consistent with Justice
Cavanagh‘s previous recommended revision. Moreover, to keep our court rules
‘ "A hearing before an unbiased and impartial decisionmaker is a basic requirement of
due process." Crampz‘on v Dep’t of State, 395 Mich 347, 351 (1975).
2 "The fundamental requisite of due process of law is the opportunity to be heard.” Dow
v State of Michigan, 396 Mich 192, 205 (1976) (internal quotation omitted).
4
in accordance with the Whife decision, l have specified that campaign speech
shall not be the basis for recusal under the "appearance of impropriety" standard
in the former subsection (C)(t )(b)(li), which l propose to be renumbered (C){i )(c).
l would clarify when Caperton requires a justice’s disqualification by using further
language consistent with the decision. This is contained in subsection {C)(t)(b).
l would clarify the procedure by which a justice may challenge another justice’s
participation in a particular case. l propose amending subsection (B) expressly
to allow a justice to raise another justice's participation in a case, and the
procedure required to challenge another justice’s participation is parallel with the
procedure required of a party and is provided in subsection (D)(3). The
obligation to challenge arises when a justice becomes aware of the basis for
disqualification in a particular case.
l would specify that a judge may not be subject to disqualification simply because
the parties agree among themselves that the judge should be disqualified l
propose adding a new subsection (B)(.'Z)(c) to address this situation
Finally, while l do not object to changing the term “remittal" to "waiver” in the new
subsection (E), l believe the language lin the current rule provides more
protection for the parties and a more structured procedural mechanism than the
provision as revised. in particular, the previous language specihed that parties
may not waive a judge’s participation in the face of personal bias or prejudice
and that the waiver must be made out of the presence of the judge. l cannot
think of a single justification for asking parties to waive a judge’s actual bias and
believe that the draftsman of the revised provision inadvertently omitted this
language from the current rule in attempting to restate it. Therefore, l would
retain the current language in the rule.
l have indicated in redline my proposed amendments to the rule. The baseline
language in subsection (D)(t) is the language that Justice l-lathaway initially proposed
as the deadline for i°iling a motion for disqualit"rcation, but which was agreed to be
reworked at our next ADM conference
THE RULE VOTED ON W|TH JUST|CE YOUNG’S F’ROPOSED AMENDMENTS
Rule 2.003 Disqualification of Judge
(A)
(B)
Applicability. This rule applies to all judges, including justices of the Michigan
Supreme Court, unless a specific provision is stated to apply only to judges of a
certain court. The word "judge" includes a justice of the Michigan Supreme
Court.
VVho May Raise. A party may raise the issue of a judge’s disqualification by
motion or the judge may raise it. Anv justice on the Supreme Court may raise
the issue of another justice’s disqualification when grounds in a particular case
become known.
Grounds. A judge is disqualified when the judge cannot impartially hear a case,
including but not limited to instances in which:
(1) Disqualit”rcatlon of a judge is warranted for reasons that include, but are
not limited to, the following:
(a) The judge is biased or prejudiced for or against a party or attorney
(b) The judge, based on objective and reasonable perceptions, has
eitl=rer-(ii}~a serious risk of actual bias impacting the due process
rights of a party when a person with a personal stake in a particular
case had a significant and disproportionate influence in placing the
judge on the case by raising funds or directing the iudqe’s election
ici
(@Q)
(<°=t§)
(@f)
(»YQ.)
(sb)
(2)
(@)
campaign when the case was pending or imminent as enunciated
in Gape/ton v Massey, ”M_ US _1__ (2009);
The iudoe, based on objective and reasonabie perceptions, er»iii§
has faiied to adhere to the appearance of impropriety standard set
forth in Canon 2 of the l\/lichigan Code of Judicial Conduct,
Recusai shall not be required under this section based on a iudoe’s
campaign speech
The judge has personal knowledge of disputed evidentiary facts
concerning the proceeding.
The judge has been consulted or employed as an attorney in the
matter in controversy.
The judge was a partner of a party, attorney for a party, or a
member of a law firm representing a party within the preceding two
years
The judge knows that he or she, individually or as a tiduciary, or the
judge‘s spouse, parent, or child wherever residing, or any other
member of the judge's family residing in the judge's household, has
more than a de minimis economic interest in the subject matter in
controversy that could be substantially impacted by the proceeding
The judge or the j`udge's spouse, or a person within the third degree
of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an ofhcer, director or trustee
of a party;
is acting as a lawyer in the prooeeding;
is known by the judge to have a more than a de minimis
interest that could be substantially affected by the
prooeeding; or
is to the judge's knowledge likely to be a material witness in
the proceeding
(i\/)
Disqualification Not Warranted,
A judge is not disqualified merely because the judge's former law
clerk is an attorney of record for a party in an action that is before
the judge or is associated with a law t`irm representing a party in an
action that is before the judge.
(Dl
{laj(cj A judge shall not be subject to disqualification based solely on the
agreement of the parties
Procedure.
Qj_`l"r`me for Fi/ing in the Trial Cou/ts, Eer~rrietie i-seurt,-tfo avoid
delaying trial and inconveniencing witnesses if a party is aware cfa basis for
a motion to disqualify a judge before filinq its initial pleadinq, the party must
file a motion to disqualify with the initial pleadinq. Othervvise. the party must
file a motion to disqualify»lae~filed within 14 days after the moving party
discovers the ground for disqualification |f the discovery is made within 14
days of the trial date, the motion must be made forthwith. '
n n o a
v vi ;_ v d .
no v ~ n ~
v»' o
trial~»eouial.~ l t~ef~appeals~os€:i;iprenee»€eeid~mayaleesgranted»fer»geod»oa»use
shewns
Time for Fil’!no in the Court of ADDea/s, if a party is aware of a basis for a
motion to disqualify a Court of Appeais judge assigned to ad§udicate the
appellani’s case, the party must tile a motion to disqualify within 14 days after
receiving notice of the judges assigned to the appellants case. Otherwise, a
party must file a motion to disqualify within 14 days after the party discovers
or should have discovered the basis for disqualification lf a party discovers
the basis for disoualihoation within 14 days before a scheduled oral argument
or argument on the application for leave to appeal the motion must be made
forthwith
{2
»..»/
(3) T/'me for Fi/inq in the Supreme Court. lf an appellant is aware of a basis for a
motion to disqualify a justice before the application for leave is filed the
appellant must file a motion to disqualify with the application Otherwise. the
appellant must file a motion to disqualify within 28 days after the appellant
discovers or should have discovered the basis for disqualification if an
appellee is aware of a basis for a motion to disqualify a justice the appellee
must file a motion to disqualify within 28 days after the application is filed
Othenivise, an appellee must file a motion to disqualify within 28 days after the
appellee discovers or should have discovered the basis for disgualification, if
any party discovers the basis for disqualification within 28 days before a
scheduled oral argument or argument on the application for leave to appeal
the motion must be made forthwith,
li a justice is aware of a basis of another justice’s disqualification when an
application for leave is filed the justice must raise this question before the
order to enter date Otherwise a justice must raise the issue of
disqualification within 28 days after the iustice discovers or should have
discovered the basis for disdualification. lf a justice discovers the basis for
dlsoualii°icatioh within 28 days before a scheduled oral argument or argument
on the claim or application for leave to aooeal, the issue must be raised
forthwith.
(4~)(4) Effecz‘ of Untirne!v Moz‘ion, if a motion is not timely filed in the trial court
the Court of Aopeals, or the Supreme Court. untimellness, including delay in
waiving iurv trial. is a factor in deciding whether the motion should be granted
No judge shall consider a motion filed after an order resolving the case has
been entered
(§_2) All Grounds to be Included; Affidavit. ln any motion under this rule, the
moving party must include all grounds for disqualification that are known
at the time the motion is t`iled. An affidavit must accompany the rnotion.
{ۤ3) Ruling.
(a) For courts other than the Supreme Court, the challenged judge
shall decide the motion. lf the challenged judge denies the motion,
(i) in a court having two or more judges, on the request of a
party, the challenged judge shall refer the motion to the chief
judge, who shall decide the motion de novo;
(ii) in a single-judge court, or if the challenged judge is the chief
judge, on the request of a party, the challenged judge shall
refer the motion to the state court administrator for
assignment to anotherjudge, who shall decide the motion de
novo.
(b) in the Supreme Court, if a justice’s participation in a case is
challenged by a written motion or if the issue of participation is
raised by the justice himself or herself or another iustice, the
challenged justice shall decide the issue and publish his or her
reasons about whether to participate if the challenged justice
denies the motion for disqualit"ication, a party may move for the
motion to be decided by the entire Court.
9
`{i_`i,___The entire Court, includino the iustice who is the subiect of
the appeal and any other iustice whose participation is
chalien<:ied in the case. except a justice removed pursuant to
subsection liii)_ shall then decide the motion for
disqualification de novo. in decidinq the motion for
disqualification the Court shaii be limited to the orounds
raised in the motion itseif_ The Court’s decision shall include
the reasons for its grant or denial of the motion for
disqualification A iustice may only be disqualified from a
case upon the vote of a majority of all iustices on the Court
The Court shall issue a written order containing a statement
of reasons for its grant or denial of the motion for
disqualification Any concurring or dissenting statements
shall be in writinq, includinq that of the challenged iustice.
{iii upon motion by the chaliencied iustice, the Court shall
conduct an evidentiary hearino, doverned by the iyiichioan
Court Rules and the iy‘iichioan Rules of Eyidence. to
determine any material facts necessary to the resolution of
the motion for disouaiitication. Any appeai on the motion for
disouaiification decided lay the entire Court. inciudino any
evidentiary hearind, must be made in an open session of the
Court. The challenged justice may retain counsel and file a
brief in response to the motion to appeal denial of
disouaiification_ The responsive brief must be filed and
served within 21 days after the party movino for
disqualification appeals the iustice’s decision to deny the
motion for disdualiication.
{i}(iii} Any appeal on the motion for disqualification must be
resolved by a neutral arbiter fo|loyvino the i\/lichiqan Court
Rules and the l‘iilichiqan Rules of Evidence. The iustice may
challenoe the participation of any iustice to hear an appeal
on the motion for disqualification by indicating the basis for
any such disqualification of any other iustice sitting on the
appeal Such claim of disqualification of a iustice is sul:)iect
to the procedures contained in this rule and shall be resolved
in accordance with the appropriate substantive rules for
disoualihcation prior to any decision on the appeal of the
original motion for disqualification
(_`/:-’-i) lf Disqualification Motion ls Granted.
(a) For courts other than the Supreme Court, when a judge is
disqualii”ied, the action must be assigned to another judge of the
10
(E)
same court, or, if one is not available, the state court administrator
shall assign anotherjudge.
(t)) in the Supreme Court, when a justice is disqualii°ied, the underlying
action will be decided by the remaining justices of the Court.
Waiver of Disqualification. if it appears that there may be grounds for
disuuaiitication. the iucioe may ask the parties and their lawyers to consider out
of the presence of the iudqe, whether to waive disouaiiiication. itt foilowinq
disclosure ot any basis for disqualification other than personal bias or oreiudice
concerning a oartv. the parties without participation by the iudqe, ali aoree that
the iuclqe should not be disqualihed. and the iudqe is then wiiiino to participate
the iudqe may participate in the'oroceedinos. The agreement shali be in writinq
o Qtacedontherecord_ ~ = -~ = = ~~-~= ~-. .- .» = .=--
11
EXHlBlT C
MEMORANDUM
TO: The Justices
ccc Corbin Davis & l\/like Schmedlen
FROl\/l: Justice Robert P. Young, Jr.
RE: ADM 2009-O4, Disqualification
DATE: December 7, 2009
For the convenience of members of the Court, l am reprinting, be|ow, all of my
proposed amendments to l\/|CR 2.003. in addition to the amendments that l proposed
on November 19, 2009, l include my proposed amendments to the deadline for filing a
motion, circulated to the Court on December 4, 2009, and Justice l\/larkman’s proposed
amendments, circulated to the Court this morning. l also reprint my initial explanations
for these proposed amendments, as refined to include the more recent proposals.
PROPOSED DUE PROCESS Al\/lENDl\/|ENTS
o l have split the "Time for Filing" subsection into four parts (subsections (D)(t)
through (D)(¢l)). There is proposed one subsection for procedures respectively in
the trial court, the Court of Appeals, and this Court, and a fourth subsection
concerning the effect of an untimely motion. As to motions in this Court, l have
specified that the appellant must file a motion for disqualification with the
application if the appellant knows the basis for disqualification at that point. All
other motions must be filed with 28 days of discovery of the grounds for
disqua|ification. That way, we are aware of potential grounds for disqualification
before acting on the application for leave to appeal. l would also retain the
previous language concerning the effect of an untimely proposal.
Additionally, l believe that we should require a party to file a motion to disqualify
as soon as it is aware of a basis for disqualification - particularly on the eve of
trial or oral arguments - and l want the rule to specify this. Justice Hathaway’s
proposed language already maintains this requirement for motions in the trial
court1 my proposed language would provide parallel requirements for the Court of
Appea|s and Supreme Court.
l would clarify that, when the rule refers to an appeal on disqualification being
decided by "the entire Court," this includes the challenged justice. This is
already implied in the plain text of the current rule - "[t]he entire Court shall then
decide the motion for disqualification de novo" - and so my revisions would
merely clarify the rule as enacted. These clarifications are contained in
subsection (D)(6)(b). if this proposal is repudiated, and a targeted justice is
ineligible to hear any appeal on a motion for disqualification, there is the
possibility, when multiple justices are targeted, that an appeal on disqualification
will run afoul of the quorum requirement of l\/lCL 600.211(3), requiring "a majority
ofjustices...for hearing cases and transacting business."
l continue strongly to support Justice l\/larkman’s demand for transparency in the
disqualification process. A disqualification matter to be decided under the new
rule as an appeal to the entire Court is not one on the merits and thus is not
subject to the same kind of confidentiality that attends our merit discussions of
pending appeals. Accordingly, l would expressly require that any appeal to the
entire Court on a motion for disqualification be heard and decided in an open
session of this Court. This procedure is contained in subsection (D)(G)(b)(ii).
~ The removal of a sitting Justice against his or her will is a serious matter
trenching upon the right to execute the duties of office to which the Justice was
elected as well as an infringement on the right of electors who placed the Justice
in office. Heretofore, only an appeal to the Supreme Court of the United States
could reverse a Justice’s determination regarding a motion to disqualify. in
interposing itself in this decision as an appellate body, this Court must afford the
targeted Justice no fewer rights than he enjoyed in such an appeal to the
Supreme Court of the United States on a denial of a motion to disqualify. l would
clarify that a justice subject to a motion for disqualification is entitled to basic due
process rights: that the appeal is limited to the grounds stated in the motion for
recusal and that the justice be allowed to retain counsel in the matter and submit
a brief in response to the motion for disqualification. The procedural
requirements for filing such a brief are consistent with the filing of reply briefs in
the Court of Appeals and this Court. These proposals are contained in
subsections (D)(6)(b)(i) and (ii).
¢ lf due process means anything - particularly in the disqualification setting where
this issue is pivotal - a targeted Justice is most assuredly entitled to an impartial
arbiter.1 Where personal and political biases could affect the decision-making of
members of this Court in the new disqualification appeal process, l cannot
‘ "A hearing before an unbiased and impartial decisionmaker is a basic requirement of
due process." Crampton v Dep’t of Sl‘ate, 395 Nlich 347, 351 (1975).
imagine that due process demands less than the right to challenge such potential
biases of the decision-makers in this appellate procedure. Therefore, l would
amend the rule to ensue that this cardinal due process right is preserved, such
that a targeted justice facing an appellate review of his refusal to disqualify can
challenge the potential biases of other members of this Court. The substance of
this rule is consistent with Justice Markman’s failed motion at the last ADl\/l
discussion. However, l have provided specific procedural requirements for a
judge to challenge the decision-maker in such an appeal. This is contained in
subsection (D)(6)(b)(iii).
» Due process also demands an adequate opportunity for a challenged justice to
be heard.z Sometimes, this will entail an evidentiary hearing. l have therefore
proposed a procedure for this Court taking evidence, contained in subsection
(D)(@)(b)(ii)-
o l continue to be concerned with the First Amendment implications of our new
recusal rules. l propose amending subsection (C)(Z)(b) to provide that "A judge
is not disqualified based solely upon campaign speech protected by Republican
Pan‘y of Minn v White, 536 U.S. 765 (2002)." This is consistent with Justice
Cavanagh's previous recommended revision. l\/loreover, to keep our court rules
in accordance with the l/l/hite decision, l have specified that campaign speech
shall not be the basis for recusal under the "appearance of impropriety" standard
in the former subsection (C)(t)(b)(ii), which l propose to be renumbered (C)(1)(c).
2 "The fundamental requisite of due process of law is the opportunity to be heard." Dow
v State of Mich/'gan, 396 Mich 192, 205 (1976) (internal quotation omitted).
4
~ l would clarify when Caperton requires a justice’s disqualification by using further
language consistent with the decision. This is contained in subsection (C)(f)(b).
» l would clarify the procedure by which a justice may challenge another justice’s
participation in a particular case. l propose amending subsection (B) expressly
to allow a justice to raise another justice’s participation in a case, and the
procedure required to challenge another justice’s participation is parallel with the
procedure required of a party and is provided in subsection (D)(B). The
obligation to challenge arises when a justice becomes aware of the basis for
disqualification in a particular case.
» l would specify that a judge may not be subject to disqualification simply because
the parties agree among themselves that the judge should be disqualified. l
propose adding a new subsection (B)(2)(c) to address this situation
~ Finally, while l do not object to changing the term "remittal" to "waiver" in the new
subsection (E), l believe the language in the current rule provides more
protection for the parties and a more structured procedural mechanism than the
provision as revised. in particular, the previous language specified that parties
may not waive a judge’s participation in the face of personal bias or prejudice
and that the waiver must be made out of the presence of the judge. l cannot
think of a single justification for asking parties to waive a judge’s actual bias and
believe that the draftsman of the revised provision inadvertently omitted this
language from the current rule in attempting to restate it. Therefore, l would
retain the current language in the rule.
l have indicated in redline my proposed amendments to the rule as it appears in
the Court’s November 25, 2009 order (as amended with the Court’s December 3, 2009
order).
THE NOVEMBER 25, 2009 ORDER (AS AMENDED DECEN\BER 3, 2009) WlTH
JUSTICE YOUNG’S PROPOSED AMENDMENTS
Rule 2.003 Disqualification of Judge
(A)
(B)
(C)
Applicability. This rule applies to all judges, including justices of the l\/lichigan
Supreme Court, unless a specific provision is stated to apply only to judges of a
certain court. The word "judge" includes a justice of the l\/lichigan Supreme
Court.
Who May Raise. A party may raise the issue of a judge’s disqualification by
motion or the judge may raise it. Any justice on the Supreme Court may raise
the issue of another justice’s disqualification when grounds in a particular case
become i536 U.S. 765 (2002).
The judge has personal knowledge of disputed evidentiary facts
concerning the proceeding.
The judge has been consulted or employed as an attorney in the
matter in controversy.
The judge was a partner of a party, attorney for a party, or a
member of a law firm representing a party within the preceding two
years.
The judge knows that he or she, individually or as a fiduciary, or the
judge's spouse, parent, or child wherever residing, or any other
member of the judge's family residing in the judge's household, has
more than a de minimis economic interest in the subject matter in
controversy that could be substantially impacted by the proceeding.
The judge or the judge's spouse, or a person within the third degree
of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director or trustee
of a party;
is acting as a lawyer in the proceeding;
is known by the judge to have a more than a de minimis
interest that could be substantially affected by the
proceeding; or
is to the judge's knowledge likely to be a material witness in
the proceeding.
(i\/)
Disqualification Not Warranted.
A judge is not disqualified merely because the judge's former law
clerk is an attorney of record for a party in an action that is before
the judge or is associated with a law firm representing a party in an
action that is before the judge.
(b) A judge is not disqualified based solely upon campaign speech
765 (2002);
v ~ cv v
protected by Repub/ican Party of Minn v White, 536 US
(|3)
§e} c A judge shall not be subject to disqualification based soieiy on the
agreement of the parties
Procedure.
j_tj_T/me for Filing in the Trial Courts. ff_o avoid
delaying trial and inconveniencing witnesses, a_jja motions te-~f_c_)_r
disqualificationy must be filed within 14 days after~g__f_
discoverys_o_t_’ the ground_s_ for disqualification. lf the discovery is made within
14 days of the trial date, the motion must be made forthwith.
(2) Time for Fi/ing in the Court of Appea/s. All motions for disgualification must
be filed within 14 days of disclosure of the judges’ assignment to the case or
within 14 days of the discovery of the grounds for disqualification lf a party
discovers the grounds for disqualification within 14 days before a scheduled
oral argument or argument on the application for leave to appeal, the motion
must be made forthwith
(3) Time for Filing in the Supreme Court. lf an appellant is aware of grounds for
disqualification of a justice, the appeilant must file a motion to disqualify with
the application for leave to appeal. 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. if a party discovers the
grounds for disqualification within 28 days of a scheduled oral argument or
argument on the application for leave to appeal, the motion must be made
forthwith
All requests for review by the entire Court pursuant to subsection (S)(b) must
be made within 14 days of the entry of the decision by the individual justice
lf a justice is aware of grounds for disqualification of another justice the
justice must raise the question before the order to enter date Gthervvise, a
justice must raise the issue within 28 days after the justice discovers or
should have discovered the grounds for disqualification. if a justice discovers
the grounds for disqualification within 28 days of a scheduled oral argument
or argument on the appiication for leave to appeal, the issue must be raised
forthwith.
t§li~}ié,} Unz‘irne/y Motions. if a motion is not timely filed in the triai court, the Court
of Appeals, or the Supreme Court. untimeliness, including delay in waiving
jury trial, is a factor in deciding whether the motion shouid be granted No
judge shail consider a motion filed after an order resoiving the case has been
entered
(§3)
(§3)
AIl Grounds to be lncluded; Affidavit. in any motion under this rule, the
moving party must include ali grounds for disqualification that are known
at the time the motion is filed. An affidavit must accompany the motion.
Ruling.
(a)
For courts other than the Supreme Court, the challenged judge
shall decide the motion. if the challenged judge denies the motion,
(i) in a court having two or more judges, on the request of a
party, the challenged judge shall refer the motion to the chief
judge, who shall decide the motion de novo;
(ii) in a single-judge court, or if the challenged judge is the chief
judge, on the request of a party, the challenged judge shall
refer the motion to the state court administrator for
assignment to anotherjudge, who shall decide the motion de
novo.
in the Supreme Court, if a justice’s participation in a case is
challenged by a written motion or if the issue of participation is
raised by the justice himself or herself or another justice, the
challenged justice shall decide the issue and publish his or her
reasons about whether to participate. if the challenged justice
denies the motion for disqualification, a party may move for the
motion to be decided by the entire Court.
jj) The entire Court, including the justice who is the subject of
the appeai and any other justice whose participation is
challenged in the case, except a justice removed pursuant to
subsection jiii). shall then decide the motion for
disqualification de novo. in deciding the motion for
disqualification, the Court shall be limited to the grounds
raised in the motion itseif. The Court’s decision shall include
the reasons for its grant or denial of the motion for
disqualification. A justice may only be disqualified from a
case upon the vote of a majority of all justices on the Court.
The Court shall issue a written order containing a statement
of reasons for its grant or denial of the motion for
disqualification. Any concurring or dissenting statements
shall be in writing. including that of the challenged iustice.
(ii) Upon motion by a justice the Court shali conduct an
evidentiary hearing, governed by the l\/iichjgan Court Rules
and the l\/lichiqan Rules of Evidence, to determine any
(E)
material facts necessary to the resolution of the motion for
disquaiification. Any appeal on the motion for
disqualification decided by the entire Court, including any
evidentiary hearinq, must be made in an open session of the
Court. The challenged justice may retain counsel and file a
brief in response to the motion to appeal denial of
disqualification The responsive brief must be filed and
served within 21 days after the party moving for
disqualification appeals the justice's decision to deny the
motion for disqualification
Any appeal on the motion for disqualification must be
resolved by a neutral arbiter following the Michiqan Court
Ruies and the l\/iichigan Ruies of Evidence. The justice may
challenge the participation of any justice to hear an appeal
on the motion for disqualification by indicating the basis for
any such disqualification of any other justice sitting on the
appeal. Such claim of disqualification of a justice is subject
to the procedures contained in this rule and shall be resolved
in accordance with the appropriate substantive rules for
disqualification prior to any decision on the appeal of the
original motion for disqualification
ga iii
(14) lf Disqualification ll/lotion ls Granted.
(a) For courts other than the Supreme Court, when a judge is
disguaijfied, the action must be assigned to another judge of the
same court, or, if one is not available, the state court administrator
shall assign anotherjudge.
(b) in the Supreme Court, when a justice is disqualified, the underlying
action will be decided by the remaining justices of the Court.
Waiver of Disquaiification. if it appears that there may be grounds for
disqualification, the judge may ask the parties and their lawyers to consider out
of the presence of the judge, whether to waive disqualification if, following
disclosure of any basis for disqualification other than personal bias or prejudice
concerning a party, the parties without participation by the judge, all agree that
the judge should not be disqualified and the judge is then willing to participate
the judge may participate in the pr0ceedings. The agreement shall be in writing
or placed on the record. ‘ ` ` ` ` ' `