MSC to Judge James: we won’t step down

All seven Michigan Supreme Court justices have denied a motion to disqualify them in a judicial disciplinary case.

Back in April, the Court exercised its powers of superintending control, and ordered 22nd District Court Judge Sylvia M. James to be placed on paid administrative leave after a State Court Administrative Office audit uncovered some irregularities in her court’s financial records.

James moved to disqualify the Supreme Court justices from participating in her Judicial Tenure Commission matter because she said the justices had suspended her, which could mean they’re biased against her.

Chief Justice Robert P. Young wrote in the Nov. 30 order denying James’ motion that there is a difference between suspension and being placed on paid administrative leave. And the Court had exercised its constitutional powers “to protect the public and the integrity of the district court until such time that an assessment of the implications of the audit can be determined. Administrative leave is not a disciplinary action, nor is the Court’s power to require a judge to take an administrative leave …”

Young’s colleagues also voted to deny James’ motion because they said that they are not personally biased against or for Judge James.

Supreme spat

At the end of today’s Michigan Supreme Court administrative conference, the sparks flew as Justice Elizabeth A. Weaver requested to rescind AO 2006-08, which she called a “gag order” which was used to suppress her dissent in Attorney Grievance Commission v Fieger.

She said it was adopted on an emergency basis during an executive session late in 2006 by a 4-3 vote, led by then-Chief Justice Clifford Taylor.  At a subsequent public hearing in January 2007, Weaver said, the Court took public comments, but then never voted to retain or amend the order, which she said makes 2006-08 invalid under the court’s orders and procedures as defined in AO 1997-11 (B) (2).

But it’s not a simple housekeeping issue, said Justice Stephen J. Markman. The order, he said, has been in place since December 2006.

“What’s different about things today than yesterday, and last week, and last month?” he asked.

What’s different, it turns out, is that three justices — Markman, Robert P. Young and Maura D. Corrigan — recently asked the Judicial Tenure Commission to investigate Weaver for violating the administrative order.

“I referred you,” Young said, “because you’re unethical. … You have compromised the integrity of this court and have made it impossible for this court to have deliberation without fear …” that comments made in private discussions would later be made public.

Corrigan called Weaver’s attempt to cease the publication of AO 2006-08 “an attempt to cover up” her alleged violation of it.

“We know why Justice Weaver wants this rule eradicated. Justice Weaver wants to kill this order retroactively, and act as though it never existed, because she broke the rule,” Corrigan said. “The rule is simple: When deciding cases that come before us, judges need to communicate openly and frankly with one another. To that end, we must protect the confidentiality of our deliberations.”

The most recent alleged violation, Weaver explained, was not a violation at all. She said that she has recused herself from a case because she had spoken to an attorney who she did not know was employed by a firm that had a case in front of the Michigan Supreme Court; though not giving details, she said that the case in question was finished at the time of the conversation, but may be related to future cases. Though the conversation would not amount to impropriety, she said she recused herself to avoid even the appearance of impropriety. Weaver said she did not discuss the substance of the case, which is prohibited by 2006-08. Processes, however, she said are fair game in conversations after the conclusion of cases.

Aside from the bombshell dropped when Young, Corrigan and Markman identified themselves as the colleagues who had sent referrals to the JTC, Markman also said he had stopped attending the court’s private judicial conferences; Weaver said that Corrigan and Young had also not attended the last three meetings.

There was no choice but to stop attending the judicial conferences, Markman said because Weaver “has flagrantly breached rules of confidentiality, and promises to do so again, by revealing interim positions of justices as to their votes in conference, as well as their other privately expressed opinions concerning cases before this court.

“I  do not wish to continue to place myself in a position by which Justice Weaver can abuse the deliberative process, while taking out of context statements made by justices in the course of their deliberative discussions.”

Weaver fired back that when she was elected, she never “said I was joining a secret club.”

Further, she said, justices are required by Cannon 3 B of the Michigan Code of Judicial Conduct to “facilitate the work of the court,” which the absent justices have not been doing.

As for the referral to the JTC, Weaver said that she used to teach elementary school and learned then that no one likes a tattletale.

“The public is not interested in tattletale judges,” she said. “The public will take care of tattletale judges.”

Weaver’s proposed order failed 5-2, with weaver and Justice Diane M. Hathaway voting in favor; against were Justice Michael F. Cavanagh, Corrigan, Young, Markman, and Chief Justice Marilyn Kelly.

Kelly proposed a substitute, which also failed 5-2 with Kelly and Cavanagh voting in favor.

“This controversy does not alter the Court’s duty to the people of Michigan, nor should it,” Kelly concluded. “My colleagues and I will continue, as we have always done, to decide cases, write and issue opinions, consider and promulgate changes to court rules, and perform the court’s other business. We have responsibilities to the public and to litigants; that does not and will never change. The court’s work continues.”

6th Circuit: Fieger’s MSC recusal suit moot

The Sixth Circuit has turned down what it describes as Geoffrey Fieger’s “latest attempt to involve the federal courts in his long-running dispute with several justices of the Michigan Supreme Court.”

In Fieger v. Gromek, et al., the Southfield attorney took another run at Justices Maura Corrigan, Robert Young, Stephen Markman and former Justice Clifford Taylor who, thanks to his losing re-election bid in 2008, is no longer a party to the suit. They’ve been instrumental in zapping some very large judgments Fieger obtained for his clients. So, Fieger has been, and probably will always be, their very vocal critic.

And, according to Sixth Circuit Judge Julia Smith Gibbons, the four have dished it right back:

The justices have publicly responded to Fieger’s comments during the course of their re-election campaigns, suggesting to the citizens of Michigan that being despised by Fieger is not necessarily a bad thing.

Fieger’s previous federal-court attempts to keep Corrigan, et al. from hearing his appeals have focused on violations of his clients’ rights to a fair and impartial tribunal.

In Fieger v. Gromek, he took a more personal tack. From Gibbons’ opinion:

Rather than assert the alleged harm to his clients’ interests by the potential absence of an impartial tribunal, the current suit seeks to vindicate Fieger’s own personal interest “to pursue his chosen profession, avocation and occupation free from reprisal for exercising his First Amendment rights … and to have his cases … decided by a fair, independent, and impartial tribunal.”

Fieger alleges that the justices’ “public, personal, political, and professional animus” toward him requires their recusal and that the justices’ failure to do so violates his Fourteenth Amendment right to due process of law.

U.S. District Court Judge Mariann Battani dismissed the case under the Rooker-Feldman doctrine. Fieger appealed.

Gibbons noted that the doctrine only applies when the alleged harm is based on a past state-court judgment. So, Fieger couldn’t complain about the justices’ prior failures to recuse but he could “potentially” claim that future failures would violate his 14th Amendment rights.

More from Gibbons:

On remand, the district court determined that while Fieger had brought both facial and as-applied challenges to Michigan’s recusal procedure, only the facial challenge survived the issuance of our mandate. …

The district court reasoned that an as-applied challenge “in future cases” necessarily “does not and cannot exist” because as-applied challenges can only concern past actions of the parties involved. … According to the district court, as-applied challenges exist solely “to redress existing violations,”not future ones. … Turning to the merits of the remaining facial challenge, the district court found that Fieger’s claim could not succeed because Michigan’s existing recusal procedures would not be clearly unconstitutional in all circumstances.

Gibbons then noted that Battani didn’t get it exactly right:

It is clear that our prior holding explicitly acknowledged that Fieger’s suit contained an as-applied challenge to Michigan’s recusal rules in addition to his facial attack. … As we did not consider that our holding prohibited Fieger from advancing his as-applied challenge on remand, it was error for the district court to cite our opinion as the basis for its decision to refuse to consider the claim.

But it’s all a moot point now said Gibbons:

On November 25, 2009, the Michigan Supreme Court formally amended MCR 2.003, specifically providing for its application to justices of that court. …
The amendments also incorporate several changes that directly address and clarify the issues underlying Fieger’s challenge.

For example, the disqualification rule now expressly addresses the question of bias or any appearance of bias that may arise from a judge’s campaign speech: “A judge is not disqualified based solely upon campaign speech protected by Republican Party of Minn. v. White, 536 U.S. 765 (2002), so long as such speech does not demonstrate bias or prejudice or an appearance of bias or prejudice for or against a party or an attorney involved in the action.”

Fieger still has some big cases swirling around on appeal. See, The Michigan Lawyer, “Judicial disqualification: To participate or not participate? That is the question.”

Campaign season is just around the corner.

The next move, if anybody makes one, should be interesting.

What will that money buy?

That’s what James J. Sample, associate professor of law, is asking in light of the recent US Supreme Court desision in Citizens United v. FEC.

Sample is one of the speakers at the American Board of Trial Advocates symposium at Wayne State Law School, Options for an Independent Judiciary.

“What will that money buy?” he asked, now that corporate and union campaign contribution restrictions have been lifted.

Well, he showed us. He showed us about a dozen of the more famous television ads for, and against, judicial candidates around the country, including the now-famous “sleeping judge” ads which blasted Michigan Supreme Court’s former chief justice Clifford Taylor, and which some say played no small part in his defeat when he ran for re-election in 2008.

And they’re off…

The morning session of the American Board of Trial Advocates symposium, Options for an Independent Judiciary, to discuss judicial elections is in full swing, and we’ve got our wi-fi issues squared away.

Everyone has their fingers crossed, hoping for a safe landing for Justice Sandra Day O’Connor, who is expected to speak at the event after lunch.

“Nothing is more essential to the trial system than an independent judiciary,” said ABOTA Michigan chapter president Loretta M. Ames in her opening remarks. “Confidence in our trial system there has been something of a lament in the state about the appearance of partisan influence of our highest courts.”

ABOTA has asked that there be no discussion about the makeup of the Michigan Supreme Court, judicial philosophies or specific decisions since it would detract from the focus.

Disqualification motion denied

Fears that “the appearance of impropriety” standard may be too low and too subjective might be put to rest, with the release of the first ruling in a Michigan Supreme Court disqualification motion.

Southfield-based attorney Geoffrey Fieger had moved to disqualify justices Stephen J. Markman, Robert P. Young and Maura D. Corrigan in Anthony PELLEGRINO v. AMPCO Systems Parking (No. 137111). Fieger claimed those justices are biased against him and his firm, based on past political campaign speech.

But Markman cited staleness, having said during his 2000 reelection campaign only that Fieger had made campaign contributions to his opponents; and once during a speech to a medical society, Markman had made a statement about “trial lawyers” but did not mention Fieger nor his firm by name.

And the statements are just so old, Markman wrote: “He mistakenly attributes to 2002 several matters that are supported by exhibits having occurred during 2000. While, properly, there may be no statute of limitations to claims of bias or prejudice, the staleness of a complaint must at least constitute one factor in assessing the ‘appearance of propriety’ …”

In deciding some 40,000 cases, Markman said,  “Counsel has prevailed in those cases in which, in my judgment, the law was on his side, and he has not prevailed in those cases in which, in my judgment the law was not on his side.”

Further, he pointed out that he had once before disqualified himself from participating in a Fieger case, Fieger v Cox, 480 Mich 874 (2007), because it pertained to Markman’s reelection campaign in 2004.

Young and Corrigan did not participate in the Markman disqualification motion, but justices Diane M. Hathaway, Michael F. Cavanagh, Elizabeth A. Weaver and Chief Justice Marilyn Kelly concurred.

Though certainly the newly adopted MCR 2.003 states that the appearance of impropriety is a ground for judicial disqualification, Weaver wrote in her concurring statement, “The statements made by Justice Markman were made before this Court adopted MCR 2.003 as amended. We will not apply the appearance-of-impropriety standard retroactively to statements made by a justice concerning a party or party’s attorney prior to the rule’s amendments. However, we will apply the standard prospectively to statements made by a justice concerning a party or a party’s attorney from the date that the order amending MCR 2.003 was entered.”

Kelly also noted the staleness of the complaints against Markman.

“It is not alleged that Justice Markman has made subsequent public comments about attorney Geoffrey Fieger,” she wrote. “Moreover Justice Markman’s voting pattern over the past decade does not reflect bias against Mr. Fieger or the appearance of bias …”

New disqualification rule will make justices more accountable

The Detroit Free Press editorial stance on justice disqualificaiton:

For 175 years, it has been up to each justice on the Michigan Supreme Court to decide when he or she should be disqualified from hearing a case. Now the majority that took control of the state’s highest court last year has adopted a new rule that authorizes the full court to second-guess its individual members’ judgment on the critical question of impartiality.
Depending on which faction of that bitterly divided body one asks, Michigan is either entering a new era of judicial transparency or poised at the precipice of a constitutional crisis. …

Our own, somewhat less melodramatic view is that making each justice accountable to his or her peers is an improvement over the status quo, in which a litigant has no practical recourse against a judge who refuses to step aside no matter how compelling the evidence that the judge is biased.

MSC amends recently adopted recusal rule

The Michigan Supreme Court’s amendments to MCR 2.003, issued Nov. 25, 2009 have been further amended in an order released today, Dec. 3, 2009.

In the Nov. 23 version, MCR 2.003 (C) read as follows:

Grounds. A judge is disqualified when the judge cannot impartially hera a case, including but not limited to instances in which:

Today’s amendment strikes the sentence following “Grounds.” and leaves the balance of (C) intact.

Sharply divided MSC amends judicial disqualification rule

The Michigan Supreme Court has published amendments to MCR 2.003 – Disqualification of Judge.

The upshot is that if a justice is challenged on conflict-of-interest grounds and decides no conflict exists, a party to the proceeding can ask that the entire Court vote on the matter.

The Court approved the amendments at its Nov. 5 public administrative conference although no order adopting the amendments was issued at that time.

The Court’s 4-3 order, issued last week only hours before the start of the long Thanksgiving weekend, consists of 3 1/2 pages of actual amendments and 54 1/2 pages of concurring statements, dissenting statements and appendices.

A sampling:

In 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. In the past, the justices wrote rules on recusal but applied them to other judges only, not to themselves.
Some of use 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.
Chief Justice Marilyn Kelly

For the first time in our state’s history, duly elected justices may be deprived by their co-equal peers of their constitutionally protected interest in hearing cases. Starting today, those contesting traffic tickets will enjoy greater constitutional protections that justices of this Court. …
This is truly a sad day for this Court, the citizens of Michigan, and for the judicial elective system that our citizens have mandated.
Justice Maura Corrigan

Voting for the amended rule: Kelly and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway. Voting against: Corrigan, and Justices Robert Young and Stephen Markman.

Commentary: Beware power grab for Michigan court

Dan Pero, former chief of staff to Gov. John Engler, and president of the American Justice Partnership writes in his guest opinion piece in The Detroit News:

There’s a discredited practice in politics: If you can’t win the game, change the rules. The majority of justices on the Michigan Supreme Court is attempting to do just that by making it far easier to dismiss justices elected by Michigan voters from controversial cases and blatantly shift the balance of power on the court.

Michigan Supreme Court justices historically have voluntarily removed themselves from cases they cannot hear impartially. Under the new rules, the well-defined “actual bias” test for disqualification will be replaced by a fuzzy “appearance of impropriety” standard.