Judicial disqualification: To participate or not participate? That is the question

The high drama of judicial disqualification surrounding Pellegrino v. AMPCO Parking (majority opinion) (concurring/dissenting opinion) reached the stratosphere yesterday.

In an after-hours order (it hit my e-mail inbox at 6:02 p.m.), Justices Maura Corrigan and Robert Young explained why they refused to participate in disqualification proceedings under newly adopted MCR 2.003. (March 16, 2010 amendments here)

At the core of their statements: we decline to participate because we think MCR 2.003 is unconstitutional.

Chief Justice Marilyn Kelly and Justice Diane Hathaway explained why they thought Corrigan and Young were dead wrong.

At the core of their statements: Like it or not, MCR 2.003 is constitutional until this court or a higher court says it isn’t. In the meantime, you have a duty to participate.

Quick context: Plaintiff’s attorney, Geoffrey Fieger, represents Pellegrino. At stake in the Michigan Supreme Court is a $15 million verdict and a defense claim that the trial judge did too much tinkering to achieve a racially balanced jury. See, Michigan Lawyers Weekly, “Court rule, case law in conflict: MSC to determine if trial judge tipped the scale, based on race.”

Fieger sought disqualification of Young, Corrigan and Justice Stephen Markman, claiming bias against him and his firm, based on past politcal campaign speech. See, The Michigan Lawyer, “Disqualification motion denied.”

In a Jan. 28, 2010 order, Kelly, Markman and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway denied the motion. Kelly, Cavanagh, Weaver and Hathaway submitted concurring statements within the body of the order. Markman filed a separate statement explaining his decision.

Corrigan and Young both stated they were “not participating” and would provide a statement later.

Those statements were in yesterday’s order, which was accompanied by extensive attachments.

From Corrigan:

I do not participate in the orders issued under the new version of MCR 2.003 for the reasons stated in my November 25, 2009, dissent from the rule’s promulgation. Contrary to Chief Justice Kelly’s assertions, Justice Young and I have exhaustively detailed our reasons for concluding that the rule is unconstitutional. See the order amending MCR 2.003, 485 Mich ___ (entered November 25, 2009, amended December 3, 2009, ADM 2009-4) (Corrigan, J., dissenting).

We also explain here that the duty to sit clearly cannot require official acts that would violate our oaths to uphold the federal and Michigan constitutions. Const 1963, art 11, § 1.

Further, I object to the majority’s application of the new rule to this case in light of its decision to adjourn the discussion of proposed changes to the rule previously scheduled for this Court’s December 2009 and January 2010 public administrative hearings.

As Justice Young observes, the proposed changes are intended to bring the rule into compliance with minimal due process and First Amendment requirements, yet the majority here applies the rule in its current form before even discussing the proposals.

From Young:

I do not participate in the order or the Court’s decision-making under the new rule for the reasons stated in my November 25, 2009 dissent from the rule’s promulgation.

As I have previously stated, MCR 2.003 as amended is unconstitutional. That the majority has refused to consider the significant constitutional issues arising under the amended rule that I have raised is especially troubling.

In particular, on November 19, 2009, before the order amending MCR 2.003 entered, I circulated to the Court a series of substantive amendments that addressed the basic due process and First Amendment problems with the rule the majority nevertheless adopted on November 25, 2009.

In the more than four months since I proposed them, not only have the members of the majority failed to provide me with any written or oral feedback on these amendments, they have also refused to consider these amendments at our December 10, 2009, and January 27, 2010, public administrative conferences, even though they were scheduled to be considered.

That the majority is willing to review their fellow justices’ recusal decisions under the new rule in the face of its serious constitutional problems indicates an appalling indifference to the role of this Court in enforcing the rule of law. …

[M]y decision not to participate does not violate the duty to sit because deciding whether a fellow justice must be disqualified from hearing a particular case under the current court rule is inconsistent with my judicial duty to uphold the due process requirements of the United States Constitution.

From Kelly

Justices Corrigan and Young’s reason for not participating, as they have stated here and in their dissenting statements in ADM 2009-4, is that amended MCR 2.003 is unconstitutional.

Surely Justices Corrigan and Young are entitled to their personal view on this subject. But neither this Court nor any other has adopted that view. Hence, amended MCR 2.003 is clothed in a presumption of constitutionality.

Moreover, a justice has an affirmative duty to participate to the extent possible in matters that are brought before this Court. As former Chief Justice Taylor and Justice Markman stated in a 2006 Court decision, “Particularly on the supreme court of a state, a body in which judges who recuse themselves cannot be replaced, it is necessary that judges participate in cases in which recusal is not required.” This doctrine is known as the “duty to sit.”

Under that duty, there is an obligation for a justice to remain on any case unless disqualified from doing so. Indeed, the United States Court of Appeals for the Second Circuit has opined that “where the standards governing disqualification have not been met, disqualification is not optional; rather, it is prohibited.”

Therefore, one wonders by what authority Justices Corrigan and Young refuse to acknowledge the constitutional status of the rule at present and, given their duty to sit, refuse to vote on this motion. …

Justices Corrigan’s and Young’s decisions not to participate set a disturbing precedent that one cannot reasonably believe they intend to create.

Their decisions are analogous to a justice refusing to participate in a matter governed by precedent from which that justice dissented. Essentially, Justices Corrigan and Young now state that, because they do not agree with MCR 2.003, as amended, they will refuse to follow it.

From Hathaway:

The new rule is not unconstitutional or inappropriate merely because a minority of justices on this Court disagree with incorporating an appearance of impropriety standard within the rule.

As recognized by the United States Supreme Court … the appearance-of-impropriety standard is part of a code that serves to maintain the integrity of our judiciary and the confidence of the public. Caperton recognized that appearances of partiality can rise to such an extreme level that the due process rights of parties become impaired, at which point disqualification is mandated by the United States Constitution.

But Caperton also recognized that states are free to impose more rigorous standards than due process requires, including the appearance-of-impropriety standard. Accordingly, it is constitutional to expressly include this standard within the rule.