From the Thursday, Jan. 22, 2009 Administrative Agenda of the Michigan Supreme Court, newly minted Chief Justice Marilyn Kelly presiding:
Subject: Proposed court rule regarding recusal of a Supreme Court Justice
Issue: Whether to publish for comment a proposal or several proposals regarding procedures for disqualification of a Supreme Court Justice, based on the proposals contained in closed ADM File No. 2003-26.
Status: Awaiting conference consideration.
Back in October 2007, I predicted that given the court’s then-current makeup, the court would never take up this matter on its own.
But the court’s makeup is different now and the recusal issue has been revived.
A brief backgrounder: When a party before the Michigan Supreme Court moves that a justice should be recused from a case, the justice who is the subject of the motion decides the motion. Historically, justices typically didn’t offer any reasons why they should stay on the case or back off.
Beginning in 2003, Justice Elizabeth Weaver began arguing that a justice’s recusal decision is required, under the state constitution, to be accompanied by reasons for the decision. An administrative file, ADM 2003-26, was opened on the recusal issue but it languished under former Chief Justice Maura Corrigan’s administration and was closed under former Chief Justice Clifford Taylor’s administration.
Taylor and Corrigan, along with Justices Robert Young and Stephen Markman, had been content with the status quo. Presumably, Corrigan, Young and Markman still are.
Kelly, Weaver and Justice Michael Cavanagh, want the current practice changed.
Since May 2003, proposals had been floated:
- to require a challenged justice to “publish his or her reasons” for granting or denying a recusal motion;
- to provide for review of a disqualification ruling by either “the entire court,” the chief justice, or both; and
- to prevent the challenged justice from having any say in the outcome of a motion seeking her or his disqualification.
There was also a move afoot in the 2008 legislative session to amend the state constitution to spell out disqualification grounds for Michigan Supreme Court justices.
It remains to be seen how freshman Justice Diane Hathaway will weigh in on the matter, but presumably she’s simpatico with Weaver, Kelly and Cavanagh.
And so, the first steps are being taken to revive the recusal issue.