Recuse me?

As the Michigan Supreme Court prepares to take up the thorny issue of recusal standards at its March 5 public administrative hearing, the U.S. Supreme Court will hear oral arguments March 3 in a case that brings the issue into painfully sharp focus.

And two current and one former Michigan Supreme Court justices have weighed in on the matter.

In the U.S. Supreme Court case, Caperton v. Massey, Massey, a coal company, was hit with a $50 million judgment. A jury accepted the claims of Caperton, the president of another coal company, that Massey fraudulently wrecked his business. The verdict was overturned on appeal.

The question presented to the U.S. Supreme Court, as Caperton formulated it in the petitioners’ brief, is this:

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court – more than 60% of the total amount spent to support Justice Benjamin’s campaign – while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.

In the respondents’ brief, Massey framed things this way:

Petitioners sought the recusal of Justice Brent Benjamin of the West Virginia Supreme Court of Appeals on the ground that Don Blankenship, an officer of respondent A.T. Massey Coal Company and its parent (Massey Energy Company), had made large independent expenditures in an effort to defeat Justice Benjamin’s opponent in an election several years before this case was decided. Apart from a $1,000 contribution by A.T. Massey’s Political Action Committee, neither respondents nor Massey Energy made any expenditures in support of Justice Benjamin’s election or in opposition to his opponent; Blankenship’s only direct contribution to Justice Benjamin’s campaign totaled $1,000; and Justice Benjamin has voted against Massey affiliates in at least five other cases, including one in which the judgment against Massey was almost five times that

The question presented is whether the Due Process Clause of the Fourteenth Amendment required Justice Benjamin’s disqualification on the theory that he must have felt a “debt of gratitude” to Blankenship that created a “probability of bias” in favor of respondents.

To be clear, Massey is not disputing Caperton’s claim that Blankenship spent $3 million on the election. Massey admits to that figure early on in its brief.

The case has drawn intense amici interest. The Brennan Center for Justice at the New York University School of Law has cataloged the briefs here.

There’s a definite pro-petitioner bias: links to the amici briefs supporting petitioner Caperton are accompanied by excerpts; the links to amici briefs supporting the respondents are unadorned. No matter. You can get to the briefs and judge for yourself who’s making the better arguments.

Michigan Supreme Court Justices Maura Corrigan and Robert Young, and former justice Clifford Taylor, along with seven other current and former state supreme court justices, have signed on as amici curiae in support of the respondents.

Here’s an excerpt from the brief’s “Summary Of The Argument”:

Petitioners contend that a due process violation exists here because the expenditures made in a judicial election would create a debt of gratitude in a judge towards the individual that made those expenditures. Accordingly, they claim, public confidence in judicial integrity would be hurt if the judge failed to recuse in a case involving a party that employs the individual who made the expenditure.

The logic of such a debt-of-gratitude rule could not be limited in a principled way to the instant case; therefore, the entire process of judicial elections would be imperiled. Indeed, the logic of such a rule would apply when the judge is aware of the individual’s preferred position even if neither that individual nor any related entity or person were a party. The logic would also apply to nonmonetary political support like editorial page endorsements or in-kind contributions such as get-out-the-vote efforts.

Were this Court to adopt a multi-factored amorphous due process rule, there are a number of likely consequences that would lead to decreased public confidence in the judiciary. Such a holding would endanger collegiality by creating the opportunity for political gamesmanship between different ideological factions on a court. “Weaponizing” the judicial disqualification process by importing a multi-factored due process notion would create a tool for litigants to use to undermine the people’s democratically expressed preference for a certain type of judicial philosophy. It could wreak havoc with stare decisis as “special” litigants would be able to create different compositions of a court by selectively targeting for disqualification judges whose judicial philosophy they deemed insufficiently congenial to the litigant’s cause. By using disqualification as a weapon, litigants would be able to create a jurisprudence that would diverge from that which would have otherwise emerged from the court’s duly elected judges.

A possible fix for faulty judicial ballot advice

A package of bills reported out of the Michigan Senate Judiciary Committee last week is coming too late to help the judicial candidate whose plight prompted the legislation in the first place.

Chris Martin was knocked off last November’s ballot. State election officials gave him faulty advice concerning how many signatures he needed on his nominating petitions.

The Michigan Lawyer followed Martin’s on-again, off-again ballot saga here, here and here.

Recall that Martin wanted to make a three-way race for two seats on the 23rd Circuit bench by running against the incumbents, Judges William Myles and Ronald Bergeron. The Secretary of State told Martin he needed between 100 and 200 signatures on his nominating petition.

This was bad advice: the actual number was between 200 and 400, which the incumbent judges strategically pointed out after the filing deadline passed and Martin submitted only 158 signatures.

The Secretary of State threw Martin off the ballot at the incumbents’ urgings. The Court of Appeals put him back on the ballot in a split decision. The Michigan Supreme Court tossed him back off.

Martin ran as a write-in candidate and received 11,011 votes, just 1,301 shy of knocking off Bergeron.

Senate Bills 0021 through 0024, sponsored by Senator Tony Stamas (R-Midland), would let judicial candidates for circuit, district, probate and municipal courts seek equitable relief if state or local election officials give them incorrect information that keeps them off the ballot.

No word on when the full Senate will consider the bills.

ADB reprimands ticket-fixing former Benzie prosecutor

The Attorney Discipline Board has reprimanded Anthony J. Cicchelli, the former Benzie County prosecutor, for fixing a speeding ticket for his stepson.

According to the ADB’s Notice of Reprimand, Cicchelli, identified as “respondent,” pleaded

no contest to allegations that, as an elected County Prosecutor responsible for handling traffic tickets and other civil infractions in that county, respondent requested and obtained from a district court magistrate the dismissal of a speeding ticket issued to respondent’s adult step-son, who was then residing in respondent’s home.

This was not Cicchelli’s first brush with the ADB for this sort of thing.

The Traverse City Record-Eagle reported last October that in 2005, Cicchelli pleaded no contest to an ADB complaint arising from “negligently inaccurate statements” made to a magistrate and the state police, after Cicchelli dismissed a friend’s speeding ticket.

The ADB reprimanded him for that conduct as well.

Cicchelli decided last July that he would not seek re-election.

State pays less for judgments and settlements in FY 2007-08

The State of Michigan paid out $15.8 million in lawsuit settlements and court judgments in Fiscal Year 2007-08, according to a report from the Senate Fiscal Agency.

That’s a little less than half of the $31.7 million paid out in the previous fiscal year.

For the most recent fiscal year, the Department of Corrections took the biggest hit, $4.8 million. The bulk of that amount was paid to settle two prisoner death cases.

Overall, 89 cases against the state resulted in payments. Fourteen of those cases ended with court-ordered judgments totaling $262,948. The remaining 75 cases were settlements totaling $15.5 million.

It pays to compromise.

Complete report here.

COA expands e-filing options

The Michigan Court of Appeals has expanded its electronic filing and service program, E-File&Serve, to include all criminal cases and all civil appeals from the Oakland County Circuit Court that were assigned to that court’s e-filing project.

According to Marcia McBrien, the Michigan Supreme Court’s Public Information Officer, the program had been limited to “civil appeals from Michigan Public Service Commission rulings and appeals by right in criminal cases from Wayne, Oakland, and Macomb counties where the State Appellate Defender Office represents the defendant.”

There are plenty of advantages to using E-File&Serve, says the COA and the program’s service provider, Wiznet, Inc., in a joint statement. Some highlights:

  • The Court of Appeals does not require paper filings of documents submitted through the E-File&Serve system.
  • The system enables attorneys to submit filings electronically to the Court 24-hours a day, 7 days a week from any PC with Internet access.
  • A filing received by 11:59 p.m. on a business day is considered filed that business day under MCR 7.202(2). A filing received on a weekend or holiday is considered received on the next business day.
  • The Clerk’s Office will review documents on a daily basis and has a goal of reviewing documents within one business day of their arrival.
  • Once documents are submitted electronically, you may view the status of those documents on the Wiznet system.

There’s more:

With E-File & Serve, attorneys have the option to immediately e-serve other parties in the case.

  • Documents are electronically served to other parties in a case via email generated by the system.
  • When you opt to use e-service, a service notification email containing a link to the electronic document(s) will be served to other parties in the case.
  • You will be able to use the system to track when each party received and opened the filing.

    The COA has a complete set of E-File&Serve guidelines here.

    MCOC targets ‘lawsuit abuse’

    “Lawsuit Abuse” is among the Michigan Chamber of Commerce’s top legislative priorities for the Michigan Legislature’s 2009-2010 session.

    Here’s what chamber members advocate:

    • Protecting current Michigan laws pertaining to general tort, medical liability, consumer protection and products liability, including Michigan’s FDA [Food and Drug Administration] Defense law.
    • Supporting reforms, such as limitation on attorney fees and loser pay, which ensure Michigan’s civil justice system is fair and balanced.
    • Preserving Michigan’s No-Fault automobile insurance system while allowing for competition, flexibility and choice in the marketplace and opposing attempts to reduce the tort liability threshold or increase the benefit or coverage thresholds.
    • Maintaining the right to enter into pre-dispute agreements requiring arbitration.

    The Chamber’s rationale for these priorities seems to be that its members are happy with the current state of affairs.

    The general, medical and products liability reforms that were enacted by the Legislature in the 1980s and 1990s have been effective in bringing reliability and balance to our legal system by curtailing lawsuit abuse, helping to retain practicing physicians in Michigan, and focusing court and financial resources on legitimate cases. Given Michigan’s reputation as a leader in the national legal reform movement, Michigan cannot afford to turn back the clock and should instead proactively work to strengthen and improve the state’s civil justice system. For similar reasons, the Michigan Chamber is opposed to any legislative attempts to erode the tort thresholds under Michigan’s No-Fault insurance system. Furthermore, parties should be free to agree in advance to a prompt, efficient and fair dispute resolution process outside of the court system.

    The no-fault act’s “serious impairment” threshold is the issue making the Chamber most nervous. This issue will first play out, not in the Legislature, but in the Michigan Supreme Court, where the Chamber’s influence has waned with the departure of former Justice Clifford Taylor and the election of Justice Diane Hathaway.

    Tort recovery under the no-fault act is available when traffic accident injuries constitute a “serious impairment of body function.” The current operating definition of this phrase was supplied by Taylor, joined by Justices Maura Corrigan, Robert Young and Stephen Markman, in Kreiner v. Fischer. Justice Michael Cavanagh dissented, joined by Justices Elizabeth Weaver and Marilyn Kelly.

    With Hathaway now on the court, a judicial revisiting of the issue is likely. Also likely is a less strident formulation of what it means to have a “serious impairment of body function.”

    With the change in the MSC’s makeup, the Chamber is going to have a much more difficult time getting a majority to embrace it’s point of view on the no-fault act.

    That’s why it’s more important than ever, as far as the Chamber is concerned, to have a handle on things in the Legislature, which is where the Chamber would seek a remedy for any judicial tinkering with the no-fault act.

    A complete list of the Chamber’s legislative priorities is available here.

    Not the usual thing

    The Sixth Circuit Bankruptcy Appellate Panel, which usually sits in Cincinnati, will hear oral arguments tomorrow right in downtown Detroit at the Theodore J. Levin Courthouse and Federal Building, 231 West Lafayette, Room 100 at 11 a.m.

    Two bankruptcy judges from the Eastern District of Michigan, Marci McIvor (presiding) and Steven Rhodes will be on the panel. They’ll be joined by Judge Marilyn Shea-Stonum from the the U.S. Bankruptcy Court for the Northern District of Ohio.

    The bar and the public are invited to attend.

    Details on the case and issues raised here.