Court rule affected - 2.003
Issued - November 25, 2009
Effective - "immediately" [see below]
The issue of when and how a justice of the Supreme Court should be disqualified has been an issue on which Justice Elizabeth Weaver (the Court's longest-serving Republican-nominated justice) has been rather outspoken for the last several years. Until January 2009, her position was in the minority, outvoted by the bloc of four "conservative" justices. Now that there is a new justice on the Court, her position has achieved majority status.
Up to this point, the rule and practice has been that a challenge to the impartiality of a justice is to be decided by that justice alone, without any possibility of further appeal from that point. This year, the Court announced that it was considering new amendments. On Wednesday, November 25, the final amendment was announced.
The modifications to the rule are:
- A new subparagraph (A) is added to provide that the rule now applies to all judges, including justices of the Supreme Court.
- A new subparagraph is added as 2.003(C)(1) and, under that, (b), to provide two new substantive grounds for disqualification: either an appearance of impropriety or a serious risk of bias affecting a litigant's due process rights, under the U.S. Supreme Court's recent Caperton decision.
- A new subparagraph (b) is added under 2.003(B)(2), to provide that campaign speech is not a ground for disqualification, absent a demonstration of actual or apparent bias or prejudice.
- A new subparagraph is added as 2.003(D)(3)(b), to provide that any motion for disqualification of a Supreme Court justice (after a denial by the justice) is to be decided by the Court, with reasons given for its ruling.
- Subparagraph 2.003(E) has been rewritten to, in essence, permit the parties to waive disqualification even when there may be bias or prejudice.
The rancor on the Court continues. The order is stated to be immediately effective. Justice Weaver's written submission informs the public that the amendment was approved on November 5, to be given "immediate effect", but that a majority of the justices determined that the issuance of the order should be delayed until November 25, to give the justices time to submit their written comments to accompany the order. In the meantime, on November 18, Justices Corrigan and Young submitted their responses denying disqualification motions in two pending cases, overtly stating that these denials were being entered under the "current and traditional" rule, under which a sitting justice would decide a disqualification motion on his or her own, without any input from the other justices.
These events, Justice Weaver states, "do not contribute to public confidence" in the Court and its work.
The dissenting justices offer several arguments in support of their position that the amendment violates both the U.S. and the Michigan Constitutions. They note that Chief Justice Marilyn Kelly has suggested that the rule should go further, and provide for the replacement of a disqualified justice to participate in the case, and they point out that there is no constitutional authority for such a practice.
Justice Stephen Markman, writing separately in dissent, stated that this amendment would usher in a new era of strategic disqualification motions and gamemanship among litigants.
Justice Young's dissent asserts that a justice who is the subject of a disqualification motion has a due process right to be heard on the issue, with the assistance of counsel, and in some cases a full evidentiary hearing. This is one of the most bizarre ideas that has come from a Michigan Supreme Court justice in recent years.
All three of the dissenting justices predict that the amendment will cause serious damage to civility on the Court. Civility, of course, is a virtue that appears to have been abandoned by several of the justices in recent years.
- Link to final order and justices' submissions, dated 11-25-09
- Amendment dated 12-3-09 (correcting a clerical error)
- Additional statement by Justice Weaver, issued on 12-4-09
We have retained a link to the original proposal, which was accompanied by lengthy comments from Justices Weaver, Corrigan, and Young.
Proposal: Link
Additional links:
- Caperton v. A.T. Massey Coal Company - U.S. Supreme Court decision, June 2009
- Amicus Brief - filed in the Caperton case on behalf of Justices Corrigan and Young and eight other current or former state Supreme Court justices
- Justice Weaver's independent web site
- Unfettered Debate Takes Unflattering Turn in Michigan Supreme Court - New York Times, January 2007
- Campaign donations can't force recusals - Milwaukee Sentinel-Journal, October 2009, reporting on new Caperton-inspired rule adopted in Wisconsin
