After second look, Markman grants disqualification in criminal case

Robert Winburn was convicted of murder in 1990 and his appeal bubbled its way up to the Michigan Supreme Court.

Winburn filed a motion under MCR 2.003, seeking to have Justice Stephen J. Markman disqualify himself from the case. Winburn alleged the 1990 conviction had “overlapping facts” with a federal investigation by the Bureau of Alcohol, Tobacco, and Firearms of narcotics trafficking in which Winburn was allegedly involved.

Winburn says that in 1992, then-federal prosecutor Markman reviewed the ATF investigation and declined to press charges.

Markman denied the motion on Nov. 7, stating at the time:

[D]efendant has established no connection between the facts of the 1990 murder that are currently in dispute and the circumstances of the federal drug investigation in 1992, except that defendant was involved in both matters.

Thus, the crux of defendant’s argument is simply that I participated in a decision (not to prosecute defendant) nearly two decades ago, and that I am now participating in another decision concerning a different crime in which defendant was allegedly also involved.

Earlier this week, Markman reversed his decision and will recuse himself from Winburn’s case:

Defendant has now filed a motion for “clarification of material facts.”

In this motion, defendant expands upon the record and presents new evidence supporting his previously unexplained and unsubstantiated assertion that there are “overlapping facts” between the two matters.

This evidence, in my judgment, does establish a connection between the instant appeal — in which I would participate as a judge — and the prior criminal investigation– in which I participated as prosecutor.

Under these circumstances, I believe that my disqualification is warranted, and accordingly I recuse myself from the consideration of this matter.

Sometimes, persistence pays off.

MSC’s Young: I will not participate in ‘Miller’

Michigan Supreme Court Justice Robert P. Young Jr.

Michigan Supreme Court Justice Robert P. Young Jr.
Photo by Mark Bialek

Michigan Supreme Court Justice Robert P. Young Jr. has reiterated his decision to disqualify himself from reviewing the Attorney Discipline Board’s decision to dismiss an ethics complaint against Sheldon Miller.

And he’s reiterated his firm opposition to the Court’s 4-3 decision to adopt a new disqualification procedure.

Miller represented groups of AAA employees in litigation involving sales commissions and wrongful discharge claims. He was accused of not bringing some of his clients up-to-date on the case’s status.

Young’s initial decision to not participate in Grievance Administrator v. Miller stemmed from the fact that he was “general counsel for AAA when a portion of the underlying litigation was pending.” Without Young’s participation, the Court deadlocked 3-3 on whether to grant leave to appeal.

Two of Miller’s clients, Wayne Alarie and Richard Martin, apparently felt that Young’s participation would be helpful in reviewing the ADB’s decision to not discipline Miller. Alarie and Martin filed a motion to appeal Young’s decision to sit out the Court’s review of Miller’s case.

Sorry, won’t change my mind, Young responded. From Young’s “Statement Denying Appellants’ Motion to Participate:”

I harbor no bias for or against any of the parties in this grievance matter. Moreover, as the Appellants correctly note, I had no direct contact with the Dumas v AAA case which led to the grievance matter that is now before this Court. My only (and attenuated) connection was that during my tenure as General Counsel of AAA Michigan, the Dumas case was pending: I was not counsel of record in Dumas, and AAA retained outside counsel who were, in turn, supervised by lawyers on my staff.

Obviously, as General Counsel, I was kept apprised of the progress of all litigation in which the company was involved. However, as Appellants also accurately note, I certainly had no knowledge of any counsel/client relationship issues that comprise the actual subject matter before the Court today – the grievance filed against Mr. Miller by his former clients. Most significant, AAA is not a party to this grievance, which is the only matter before this Court. Therefore, even my tenuous connection to the Dumas case has no relevance to the matter pending here.

These all sound like pretty good reasons to jump right in rather than sit on the sideline. But Young said he felt that in light of MCR 2.003, he had no choice but to exercise an abundance of caution.

He blamed it all on the Court’s adoption of the new disqualification procedure:

In a rational world where the legitimate concern is that only judges who can impartially hear cases participate in them, the recited facts would not lead to a decision to recuse.

However, last November, a majority of my colleagues created a different world — one in which it is impossible to determine in advance what standards apply to disqualification decisions — where a clear rule was replaced by a vague one. As I said at the time our new disqualification rule was adopted, the majority was weaponizing the disqualification process by inserting the “appearance of impropriety” as a controlling standard of disqualification. Moreover, now such a determination is made post hoc by a majority of this Court.

I believe that no basis exists for my disqualification in this case, but I chose the safest course under the new amorphous disqualification rule by voluntarily declining to participate in order to avoid a strategic or politically motivated motion to disqualify me, followed by the second guessing of my colleagues.

Unfortunately, this is a direct product of the new “ethical” order established by Chief Justice Kelly and Justices Cavanagh, Weaver, and Hathaway.

Accordingly, because no one can now predict what will constitute an “appearance of impropriety” in the minds of my colleagues, I decline Appellants’ request that I participate. I do so with extreme reluctance because my nonparticipation has resulted in an evenly divided court such that the propriety of the decision reached below cannot be decided by this State’s senior court.

In other words, Young disqualified himself because had he not, under MCR 2.003, the entire Court could then have been asked to review his decision to participate.

So, in the end, Young’s disagreement with a potentially cumbersome disqualification procedure carried the day in a situation that seemingly presents no ethical barrier to his participation.

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Hathaway won’t step away from Aceval case, Markman complains of delay

The wheels of justice almost never spin quickly, and in People v. Aceval (majority opinion) (concurring opinion), the pace may now be especially slow, according to Michigan Supreme Court Justice Stephen J. Markman.

Aceval, you’ll recall, was charged with a major drug offense. The jury deadlocked. Later, Aceval alleged that the trial judge and the prosecutor knew some of the prosecution’s witnesses were lying under oath and did nothing about it.

His second trial got underway but ended abruptly with his guilty plea in the face of allegations that he persuaded a prosecution witness to lie on his behalf. See, The Michigan Lawyer, “MSC to consider COA’s conflict ruling in Waterstone case“, for more background on Aceval’s case and the messy business of trying to get a perjury prosecution going against the judge who presided over Aceval’s first trial.

Diane M. HathawayThe latest chapter in the protracted saga: Aceval’s attorney, David L. Moffitt, moved to disqualify Justice Diane M. Hathaway from participating in Moffitt’s motion to have the Court rehear its 3-3 denial of Aceval’s application for leave to appeal. See, The Michigan Lawyer, “MSC denies drug defendant’s appeal on 3-3 vote, Corrigan may testify for former judge in related case.”

Hathaway denied the motion and wasn’t shy about her reasons for doing so:

I have carefully reviewed this matter and I find that I have had no involvement in defendant’s case as a trial court judge or as a former member of the Wayne County Circuit Court bench. I did not have any actual knowledge of defendant during my time on the Wayne County bench. Further, I am not personally acquainted with defendant, or counsel for the defendant, and accordingly harbor no bias or prejudice against either of them …

Defendant essentially alleges that I cannot be impartial in this appeal because I was a member of the Wayne County bench at the time of his conviction and am acquainted with the other members of that bench. However, the mere fact that I was a member of the same trial bench clearly does not support recusal in and of itself. …

Defendant’s challenge to my ability to be impartial in this appeal is also based on the unsupportable and fictitious premise that there is widespread corruption and cronyism among Wayne County judges and prosecutors. This bold assertion is supported only by numerous disjointed and bizarre allegations and opinions of his counsel. …

He further challenges my ability to be impartial based on my former marriage to Richard Hathaway, (former Wayne County Circuit Judge) currently a Wayne County prosecutor. However, I have been divorced from Richard Hathaway for over 15 years, we do not share any common financial or business interests, and I do not harbor any bias or prejudice for or against him. Moreover, I am unaware of what specific role Richard Hathaway has played in this prosecution, or its relevance to any issue in this case, and defendant has failed to provide any details in this motion.

Stephen J. MarkmanMarkman also provided a statement regarding the motion to disqualify. Whatever thoughts he had about the motion’s merits, or Hathaway’s disposition of it, he appropriately kept to himself.

Under MCR 2.003(D)(3)(b), “the challenged justice [emphasis added] shall decide the issue and publish his or her reasons about whether to participate. If the challenged justice denies the motion for disqualification, a party may move for the motion to be decided by the entire Court.”

It’s the second sentence in the above quote that prompted Markman’s statement:

I write separately only to observe that this Court adheres to a different procedure in the present motion for disqualification than it did with regard to the recent motion for disqualification in Pellegrino v AMPCO, #137111, [see, The Michigan Lawyer, “Judicial disqualification: To participate or not participate? That is the question“] and that this change in procedure has significant consequences for the new disqualification process.

In Pellegrino, this Court allowed other justices an immediate opportunity to respond to my statement to deny the disqualification motion directed toward me. In the instant case, justices are not to be afforded a similar opportunity until after, and unless, the attorney who initially moved the disqualification motion against Justice Hathaway has requested that her decision be reviewed by the full court.

Thus, one procedure entitles justices to review the disqualification decisions of other justices, while the other procedure allows such review only if sought by the attorney.

What’s the harm in that? Plenty, according to Markman:

Relevant to the instant procedure is that the motion for disqualification here was filed on Oct. 16, 2009. Now, more than six months later, a denial and an accompanying statement have been issued, and yet the process may still not be close to an end.

Defense counsel will now be entitled to respond to the targeted justice, the targeted justice will then be allowed to respond to defense counsel, the other six justices will then assess these ongoing exchanges between the lawyer and the justice, these other justices are then obligated to respond with their own statements explaining their decisions as to whether the targeted justice can participate in the case, and then finally the targeted justice will be entitled to a responsive or dissenting statement if he or she disagrees with the court majority.

Thus, an entire term of this Court will likely have passed and there will have been no resolution of the dispute that has brought this criminal appeal to the Michigan Supreme Court in the first place.

Not only then does the instant procedure improperly confer a monopoly upon lawyers in triggering full Court review of disqualification decisions, but it extends the disqualification process to unreasonable lengths to the detriment of justice.

The tail now wags the dog where a disqualification motion has been made, and it is quite certain that some number of such motions will be incentivized in order to delay rather than to facilitate justice.

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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.

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.

MSC amends judicial disqualification rule, proposes broader criminal discovery

In orders released late yesterday, the Michigan Supreme Court:

  • amended MCR 2.003 of the Michigan Court Rules. ADM File No. 2009-04. The amendment establishes time requirements for filing motions for disqualification in the trial courts, Court of Appeals, and the Supreme Court.
  • solicited comments on a proposed amendment of MCR 6.201. ADM File No. 2008-38. The proposed amendment would require prosecutors to provide to defendants any electronic recording made by governmental agencies pertaining to the case known to the prosecutor.
  • expanded the scope of the e-filing pilot project in the Oakland County Circuit Court’s Family Division. Administrative Order No. 2010-3.
  • appointed Marco S. Menezes as chief judge of the Mecosta/Osceola Probate District Court. ADM File No. 2010-01.
  • adopted a concurrent jurisdiction plan for the 12th Circuit Court and the Baraga County Probate Court. Administrative Order No. 2010-2.

Justices not done with disqualification rule?

Today is Round 2 at the Michigan Supreme Court on recently amended MCR 2.003, which set up a disqualification procedure for MSC justices.

New and old ground will be trod upon.

Agenda items relating to MCR 2.003 for this morning’s public administrative conference include:

  • language dealing with timely motions to disqualify
  • amendments to the rule proposed by Justice Robert Young
  • reconsideration of the amended rule itself
  • whether to adopt a rule to require that a justice seeking reconsideration of a vote must first obtain consent by a member of the prevailing vote group

If the agenda items are discussed in order, the sequence is, “let’s talk about amending the amendments,” “let’s talk about whether there should have been any amendments at all” and “let’s talk about a way to, perhaps, not talk about this again.”

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.