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.

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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.

 

MSC considers new recusal rules

Michigan Supreme Court justices will take more time to consider rules directing themselves to step aside from cases if they have a conflict of interest, reports The Associated Press.

The court held a public hearing on the issue Wednesday but decided to put off a vote for at least a month.

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
here.

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.

Judicial election reform buzz getting louder

Proponents of the notion that the way we select and elect our judges in Michigan is broken and needs fixing have been creating a lot of buzz recently.

Yesterday, State Rep. Lamar Lemmons, Jr. (D-2nd District) introduced a state constitutional amendment that would level the playing field by eliminating the now-constitutionally mandated incumbency designation on judicial ballots. Lemmons’ proposal has been sent to the House Judiciary Committee.

The value of the incumbency designation should not be underestimated.

“In the last 20 years, at least 95 percent of all judges in Michigan seeking re-election have been returned to office,” says Bill Ballenger, the venerable publisher of Inside Michigan Politics. Ballenger has kept tabs on such things in his newsletter since 1987.

Earlier this week, the Midwest Democracy Network rolled out an online book, “Democratic Renewal – A Call to Action from America’s Heartland”. The book assesses the scene in the Great Lakes states, and has plenty of observations about perceived wrongs and how to right them. Rich Johnson, the Executive Director of the Michigan Campaign Finance Network, wrote the book’s Michigan section. Among Johnson’s proposals:

  • Ethics law should be extended to cover the legislative and judicial branches of government.
  • Michigan should establish a commission to evaluate the merits of a system of voluntary full public funding for all State election campaigns.
  • The Michigan Supreme Court should develop standards for recusal in cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices.

A previous blog noted Michigan Supreme Court Justice Elizabeth Weaver’s reform plan, which she floated on her private web site over the year-end holidays. Weaver’s proposals have received mixed reviews in the Kalamazoo Gazette and, more recently, in the Grand Rapids Press.

Heard it before: Battani boots another Fieger bias claim against MSC

Geoff Fieger’s federal-court crusade — that he can’t get a fair shake in front of the Michigan Supreme Court because Chief Justice Clifford Taylor, and Justices Maura Corrigan, Robert Young and Stephen Markman are biased against him and won’t step aside when his cases come up — received another setback last Friday.

U.S. District Court Judge Marianne O. Battani ruled that Fieger’s allegations in Fieger v. Taylor, et al., sounded suspiciously, no, make that exactly, like the ones advanced (and rejected) in Fieger v. Ferry, et al., and dismissed the suit after a hornbook application of res judicata principles.

From Battani’s opinion: “Plaintiff’s complaint in Ferry was wide-ranging. It stated, in relevant part, that Plaintiff had the constitutional right ‘to have his cases … decided by a fair, independent and impartial tribunal, following a fair hearing, as guaranteed by the Due Process Clause … [and] the Defendants … have deprived, and continue to deprive, the Plaintiff Fieger’s civil rights by the expression of public, personal, political, and professional animus.’ …

“The current complaint states that ‘[h]aving publicly expressed their personal and professional animus toward Mr. Fieger while continuing to sit in judgment of his cases, Defendants … are denying to Mr. Fieger … a fair hearing before an impartial tribunal’ and are thus violating Plaintiff’s due process rights. … The access to courts claim states that ‘[b]y failing to provide [Plaintiff] a fair hearing before an impartial tribunal, Defendants … are depriving [Plaintiff] adequate, effective, and meaningful access to the courts.’ … The issues presented for litigation – the alleged ongoing constitutional violations caused by the absence of a fair hearing for recusal – are identical in both cases ….”

Although Fieger hasn’t had much luck with his claims that Taylor, et al., shouldn’t review his cases, the topic of formulating recusal standards for the MSC has been getting some legislative attention because it’s fairly clear that this is a project the court won’t take up on its own.