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.

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MSC appointment flap: Weaver says Taylor’s conduct ‘unprofessional, improper, unfair’

Michigan Supreme Court Justice Elizabeth Weaver has accused Chief Justice Clifford Taylor of mishandling the court’s recent appointment of Judge John Chmura as chief judge of the 37th District Court.

Weaver, the lone dissenter to the order appointing Chmura, says Taylor “effectively interfered with the chief judge appointment process.”

Both Chmura and Judge Jennifer Faunce, the 37th District Court’s chief judge pro tem, sought the chief judge appointment. Here’s what happened next, according to Weaver:

“On October 7, 2008, State Court Administrator Carl Gromek sent a copy of Judge Faunce’s fax, dated October 7, withdrawing her name from consideration for the chief judge position. Based on this information, I telephoned Judge Faunce’s office on October 7 in the late afternoon to inquire about her withdrawal. She was not available at that time, so I left a message for her to call me if she would like to discuss the matter.

“The following morning, October 8, at approximately 9:15 a.m., Judge Faunce returned my call. When I inquired as to why she withdrew, she told me that she was informed that she did not have the votes to be appointed. Therefore, she withdrew her name from consideration. I expressed to her that I had planned to vote for her and would continue to do so at the administrative conference. …

“At the October 8, 2008 administrative conference at approximately 10:20 a.m., Chief Justice Taylor announced that there was only one candidate remaining for the Chief Judge position. At that point, Justice Kelly asked if anyone knew why Judge Faunce had withdrawn. Chief Justice Taylor explained that he was of the view that there were four (4) votes for Judge Chmura, and that he had decided to call Judge Faunce to inform her that there were four votes for Judge Chmura and that Judge Faunce was welcome to withdraw or stay, but that he did not want her to be embarrassed because there were four votes for Judge Chmura and she would lose. Chief Justice Taylor related that Judge Faunce told him that she would withdraw her name and she did so.”

Weaver didn’t mince any words when explaining her view of the chief’s explanation:

“Chief Justice Taylor’s action of telling Judge Faunce that there were four votes for Judge Chmura and that Judge Faunce was welcome to withdraw or stay, before the justices had ever met to discuss and vote on the chief judge appointment, is another example of his unprofessional, improper, and unfair conduct as chief justice. [footnote omitted]

“Chief Justice Taylor’s actions effectively interfered with the chief judge appointment process because what he told Judge Faunce during his telephone call caused her to withdraw her name before the justices of this Court had even met to discuss the appointment.”

Taylor has a tendency to play things close to the vest, and that is not good, according to Weaver:

“Harmful to the proper functioning of the justice system is Chief Justice Taylor’s inclination to act secretly, not openly and transparently with respect to the administrative business of this Court. Administrative appointments of chief judges – judges who are elected public officials – constitute public administrative business, not personnel matters. Judges are not employees of the Michigan Supreme Court. They are elected officials of their counties or jurisdictions and are effectively only employees of the people of their counties or jurisdictions within the state of Michigan. This inclination toward secrecy also deprives the people of the information they need to properly make judgments on the justices’ performance of their duties. The Supreme Court should not be a secret club run for the benefit of justices and judges.”

Weaver’s solution is to publish administrative conference agendas at least three days before each conference and to prepare “draft proposed minutes” no more than three days after each conference.

These items would be available on the court’s website if Weaver had her way.

And as for the actual conferences? Those would be televised live unless personnel matters were involved.

Who do they like? Dailies weigh in with MSC endorsements

With two weeks to go before the election, editorial boards at some of the state’s daily newspapers are weighing in on the Michigan Supreme Court race.

As one might expect, the Detroit News is solidly in Chief Justice Clifford Taylor’s corner:

“Taylor should be retained on the court.

“Taylor will relinquish the chief justiceship next year, as is the court’s custom, but he has been careful with the public’s money as chief justice and sought reasonable ways to contain costs. He led the justices and appellate judges in relinquishing their cars. In a time of tight economic resources, he asked the State Court Administrative Office, which through the Supreme Court has oversight responsibilities for all state courts, to examine whether the number and jurisdictions of some lower court judges should be reallocated or reconsidered. It was the right kind of question for the court to be asking.

“The chief justice is one of a group of jurists who have in recent years changed the direction of the court – mostly for the better. Individual rulings can always be questioned, but the overall movement of the court has been to return to the concept that liability must have a relationship to fault.”

Less expected was the Detroit Free Press‘ decidedly lukewarm endorsement of the chief justice.

The Free Press noted Taylor’s aversion to courts making public policy from the bench and his view “that courts have narrow but important roles. What a statute says is what it says. What the Constitution says is what it says.”

Here’s the Free Press’ editorial rejoinder:

“That mission may sound good to those who agree with Taylor that courts in Michigan had gone too far for too long. But it’s an agenda nonetheless. It’s judging cases through the prism of a specific, long-term policy goal.

“Even worse, Taylor — the only justice up for election this year — and his conservative colleagues have taken their philosophy far beyond mere textual readings of the law or the Constitution to a point where they are, in fact, making policy as much as any of the former justices they’ve criticized.”

“Taylor is enough of a problem on the high court to warrant endorsing nearly anyone as an alternative.”

But there’s an issue, according to the Freep:

“Unfortunately, state Democrats have chosen Wayne County Circuit Judge Diane Hathaway as their candidate. Despite a solid record on the Circuit Court, Hathaway, 54, demonstrates no better grasp of the role of high court justice than Taylor, and can’t even articulate a judicial philosophy that she’d bring to the court. …

“What Hathaway says about how she would simply ‘follow the law’ is not unlike what Taylor says about his philosophy. But in an interview with the Free Press editorial board, Hathaway could not say why she would arrive at different decisions from Taylor, only that she would. She would likely be out of her depth on the high court, and not much more than a reliable, but unexplained, vote that’s the opposite of Taylor’s. That’s not reason enough to put her there.”

The Detroit Free Press concluded by scolding Hathaway’s backers:

“It’s one thing for Democrats, liberals and trial lawyers to complain about the state Supreme Court. It was quite another, apparently, for them to find a credible candidate to challenge its chief justice this year.

“Justice CLIFFORD TAYLOR should be retained Nov. 4 on the Michigan Supreme Court, but voters really deserved a better choice.”

The Bay City Times views the high court election as a choice between two extremes:

“On the conservative end, we have Chief Justice Clifford Taylor. On the liberal side, we have Diane Hathaway, Wayne County Circuit Court judge for 16 years.
Both are seasoned jurists, yet each would bring a very different philosophy to Michigan’s highest court. …

“Do you throw out one extreme for the other? Perhaps. But Hathaway hasn’t made a compelling case for such drastic action in this campaign.”

The Oakland Press opined that:

“It is certainly true that Michigan’s court has a reputation as conservative, but whether such terms as liberal or conservative are helpful in discussing a judicial contest is highly debatable. It seems that impartiality would be a better standard. Why is the plain and simple wording of the law subject to such philosophical interpretations?”

The Oakland Press’ editorial board said that once one puts the philosophical debate aside, what’s left is court administration:

“On this score, [Taylor’s] record is impressive.

“Taylor says that for the last 10 years, the state’s Supreme Court has delivered certainty, clarity and stability in the law. He says this has resulted in a dramatic drop in the filing of frivolous lawsuits throughout the Michigan state court system. In fact, he says the caseload has dropped so much that appellate judicial vacancies should not be filled in areas where court filings are down.

“He also asked all judges receiving a state car as a result of their compensation package to return it to the state for auction, resulting in a savings of more than $420,000.

“He has supported jury reform, backing proposals aimed at giving jurors more information and helping them render fair, impartial verdicts. He also would allow jurors to take notes and to ask proper questions of witnesses. …

“Hathaway is a well-qualified candidate, but on an objective basis, there is no compelling reason for voters to make a change.”

But the Lansing State Journal had no problem urging a change of personnel:

“The most important vote a Michigan resident can cast this fall is to oust Chief Justice Clifford Taylor from the Michigan Supreme Court.

“The direct beneficiary of this decision will be Diane Hathaway, the Democratic nominee. The LSJ endorses Hathaway’s candidacy as a way to protect the rights of Michigan residents against the assaults of the Taylor-led court.

“John Engler put Taylor on the Supreme Court. And huge amounts of money from business interests with business before the high court have kept him there.

“While there, Taylor and his political allies on the court have again and again put the people’s interests last.”

MSC campaign cash: A bit short of $20M

Michigan Supreme Court Chief Justice Clifford Taylor has a 10-to-1 campaign contribution advantage over challenger Wayne County Circuit Court Judge Diane Hathaway, according to the latest filings with the Secretary of State.

Taylor reported more than $1.5 million in contributions so far. Hathaway reported just under $150,000 for the period between Sept. 3 and Sept. 26.

These are not trivial sums, but both are a far cry from $20 million. Michigan Supreme Court Justice Robert Young speculated last fall that’s how much it might take to re-elect Taylor. And that’s how much Michigan Democratic Party Chair Mark Brewer said he would spend to defeat Taylor.

With less than a month before the election, it’s not realistic to expect either candidate will come close to raising $20 million in campaign contributions.

But will $20 million actually be spent on Taylor and Hathaway’s behalf?

Not likely, says Michigan Campaign Finance Network Executive Director Rich Robinson.

If that kind of money is spent on the supreme court contest, “it will come from soft-money issue ads. These can appear out of nowhere,” said Robinson.

Robinson said in the last election for governor, Jennifer Granholm and Dick Posthumus were spending $2 million per week in the closing weeks of the campaign, and “that was for total saturation of all the markets.”

If a similar “food fight” (Robinson’s phrase) were to erupt in this year’s MSC campaigns, there simply isn’t enough time left before election day to spend $20 million, according to Robinson.

Robinson said that MCFN recently “made the rounds” at television stations across the state.

“Taylor has ads cued up to go over the last three weeks of the campaign,” he said. The ads will begin to air Oct. 16 in the Detroit area, Lansing and Grand Rapids.

Robinson said that he didn’t see any Hathaway media buys when MCFN conducted its research.

Robinson said that the Judicial Confirmation Network has bought some time as well. There’s no telling what the JCN might run but its website currently features an attack ad against Barack Obama.

Poll could be sign of trouble for Taylor’s MSC re-election bid

A Marketing Resource Group-Inside Michigan Politics poll shows that if the Michigan Supreme Court election were held right now, it would be a tight race between Wayne County Circuit Court Judge Diane Hathaway, the Democratic candidate, and incumbent Chief Justice Clifford Taylor, the Republicans’ choice.

The MRG-IMP poll shows 15 percent of those surveyed would either vote for, or are leaning toward, Hathaway. Taylor polled 14 percent. The poll’s margin of error is +/- 4.1 percent. There’s a big chunk of undecided voters, 68 percent.

So, is it a meaningless pre-election poll?

Far from it, says MRG’s Director of Research Services Paul King and IMP’s Bill Ballenger.

King said he was not surprised by the large percentage of undecided voters at this stage of the game. What did surprise him is that Taylor didn’t get a bigger pop from the poll. King explained that the question asked those responding to choose between “Incumbent Justice Cliff Taylor” and “Diane Hathaway.” The incumbency designation should have translated into a better percentage for Taylor.

How come it didn’t?

Here’s the scene where maybe I should be eating a slice of humble pie. In past posts, here, here, here and here, I’ve been less than supportive of Michigan Democratic Party Chair Mark Brewer’s handling of the MSC campaign.

But King speculated that Brewer’s shots at Taylor may be responsible for Taylor’s poorer-than-expected showing in the poll.

Ballenger echoed King’s speculation about Brewer’s campaign efforts. He added that Justice Elizabeth Weaver’s constant sniping at Taylor and the rest of the “majority of four” (Justices Maura Corrigan, Robert Young and Stephen Markman), has prompted “internecine squabbling,” which has “given the court a black eye.” This also presumably works to Taylor’s disadvantage, said Ballenger.

When Ballenger made his comments, he mentioned he was en route to Washington, D.C.

What’s going on in Washington, Bill?

“The secretary of the treasury has asked for my help.”

Ever the jokester, that Bill Ballenger.

Okay, so what’s Taylor’s next move?

“He’s got over a million in campaign funds. I suggest he start spending like a drunken sailor.”

Not so sure he was joking that time.

Dems nominate Hathaway for MSC

wins floor fight at state Democratic convention and ready to take on Michigan Supreme Court Chief Justice Clifford Taylor.

Wayne County Circuit Court Judge Diane M. Hathaway: wins floor fight at state Democratic convention and ready to take on Michigan Supreme Court Chief Justice Clifford Taylor.

At its state convention in Lansing over the weekend, the Michigan Democratic Party nominated Wayne County Circuit Court Judge Diane Marie Hathaway as its candidate for the Michigan Supreme Court.

Despite a strong grassroots challenge from fellow Wayne County Circuit Court Judge Deborah Thomas – she came within 300 votes according to an Associated Press report – Hathaway prevailed with the backing of several unions, the AFL-CIO, the United Auto Workers, the Michigan Education Association, and an endorsement from the Michigan Association for Justice.

Hathaway took the expected swipes at the Michigan Republican Party and her November opponent, incumbent Michigan Supreme Court Chief Justice Clifford Taylor, the Republican nominee. From the Associated Press:

“I love the state of Michigan,” Hathaway told delegates. “I love her people and I love her environment. Our Republican-dominated Supreme Court is hurting you both.”

Hathaway and Taylor are seeking an eight-year term on the MSC.

Two for the show

With Wayne County Circuit Court Judge Diane Marie Hathaway’s announcement of her Michigan Supreme Court candidacy during a press conference call last Tuesday, the Michigan Democratic Party now has two high court candidates to choose from at its state convention this weekend.

Deborah Thomas, also a circuit judge in Wayne County, has been seeking the nomination for months.

One of them will emerge as the MDP’s nominee this weekend.

Hathaway came out swinging on Tuesday, calling Michigan Supreme Court Chief Justice Clifford Taylor “a walking conflict of interest” who rules for insurance companies the bulk of the time, and, says Hathaway, will get millions of dollars in support from insurers and large corporations. Taylor has raised nearly $1.5 million so far for his re-election campaign.

The odds favor Hathaway for the nomination. She’s picked up key endorsements from the AFL-CIO, the United Auto Workers, the Michigan Education Association and the Michigan Association for Justice. Hathaway told reporters she was in the process of securing additional endorsements, prompting one of the newshounds to ask, “Who else do you need?”

Don’t count Thomas out, though. Her campaign web site is replete with criticism of Taylor’s and the Republican majority’s jurisprudence. She’s had plenty to say about why a Hathaway candidacy will fall flat. She’s planning a strong convention presence and told me earlier this afternoon that she’ll be there this weekend “with every last vote” from her supporters.

No matter which of the two MSC hopefuls gets the nomination, she will face the uphill battle of knocking off the incumbent Taylor, the Michigan Republican Party’s choice for the November ballot. Each has been on the short end of the electoral stick before. Hathaway lost a bid for the Court of Appeals in 2006. Thomas had an unsuccessful run for the Michigan Supreme Court in 2004.

Bill Ballenger, editor and publisher of Inside Michigan Politics, has remarked to me in the past that 95 percent of all incumbent judges in Michigan in the last 20 years have been re-elected.

Long odds for a challenger, no matter who gets the nod.