Disqualification of Supreme Court Justices

Admin no. - 2009-04
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.
  

Again, there are a number of concurring and dissenting opinions included. The PDF file comes to 58 pages.

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
  

Use of electronic equipment in courtrooms

Court rule affected - MCR 8.115
Admin no. - 2008-35
Entered - August 25, 2009
Effective - September 1, 2009

A new subparagraph is added:

(C) Establishment of a Policy Regarding Portable Electronic Communication Devices.
(1) A facility that contains a courtroom may determine use of electronic equipment in nonjudicial areas of the facility.
(2) The chief judge may establish a policy regarding the use of cell phones or other portable electronic communication devices within the court, except that no photographs may be taken of any jurors or witnesses, and no photographs may be taken inside any courtroom without permission of the court. The policy regarding the use of cell phones or other portable electronic communication devices shall be posted in a conspicuous location outside and inside each courtroom. Failure to comply with this section or with the policy established by the chief judge may result in a fine, including confiscation of the device, incarceration, or both for contempt of court.

Link

Electronic Discovery

Court rules affected - 2.302, 2.310, 2.313, 2.401, 2.506
Adm. no. - 2007-24
Issued - 12-16-08
Effective - 1-1-09

The previously proposed amendments were adopted.

1. New subsections (5) to (7) have been added to MCR 2.302, governing the Scope of Discovery:

(5) Electronically Stored Information. A party has the same obligation to preserve electronically stored information as it does for all other types of information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

(6) Limitation of Discovery of Electronic Materials. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of MCR 2.302(C). The court may specify conditions for the discovery.

(7) Information Inadvertently Produced. If information that is subject to a claim of privilege or of protection as trial-preparation material is produced in discovery, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

2. Rule 2.310(C), governing Requests for Production of Documents
A second clause was added to the language of subsection (1):

The request must specify a reasonable time, place, and manner of making the inspection and performing the related acts, as well as the form or forms in which electronically stored information is to be produced, subject to objection.

A sentence was added to subsection (2):

If the request does not specify the form or forms in which electronically stored information is to be produced, the party responding to the request must produce the information in a form or forms in which the party ordinarily maintains it, or in a form or forms that is or are reasonably usable. A party producing electronically stored information need only produce the same information in one form.

3. A new subsection (E) was added to Rule 2.313, governing Failure to Provide or to Permit Discovery; Sanctions:

(E) Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

4. Rule 2.401(B)(1), governing early scheduling conferences, now has a new subsection (d):

(1) Early Scheduling Conference. The court may direct that an early scheduling conference be held. In addition to those considerations enumerated in subrule (C)(1), during this conference the court should consider. . .
(d) discovery, preservation, and claims of privilege of electronically stored information.

And (B)(2), governing Scheduling Orders, now has a newly inserted subsection (c):

(c) The scheduling order also may include provisions concerning discovery of electronically stored information, any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production, preserving discoverable information, and the form in which electronically stored information shall be produced.

5. Rule 2.506(A), governing subpoenas, has new subsections (2) and (3):

(2) A subpoena may specify the form or forms in which electronically stored information is to be produced, subject to objection. If the subpoena does not so specify, the person responding to the subpoena must produce the information in a form or forms in which the person ordinarily maintains it, or in a form or forms that are reasonably usable. A person producing electronically stored information need only produce the same information in one form.
(3) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. In a hearing or submission under subrule (H), the person responding to the subpoena must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of MCR 2.302(C). The court may specify conditions for such discovery.

The Staff Comment includes the following:

The provisions of the proposal at MCR 2.302(B)(6) and MCR 2.506(A)(3) allow the court to shift the cost of discovery to the requesting party if discovery is requested from sources that are not reasonably accessible, and prohibit sanctions if information is lost or destroyed as a result of a good-faith, routine record destruction policy or “litigation hold” procedures. The “safe harbor” provision provided in MCR 2.302(B)(5) and in MCR 2.313 applies when information is lost or destroyed under a routine electronic information system, if the operation of the system was performed in good faith. Good faith may be shown by a party’s actions to attempt to preserve information as part of a “litigation hold” that would otherwise have been lost or destroyed under an electronic information system.

These amendments track many of the provisions added in December 2006 to the Federal Rules of Civil Procedure.

Link

Temporarily-admitted lawyers

Admin No. - 2004-08
Rules - 8.126, 9.108, State Bar Rule 15
Effective - September 1, 2008

Added and amended provisions for temporary admission of attorneys admitted elsewhere (pro hac vice), payment of bar dues and fees, and disciplinary action.

A new Rule 8.126 was added:

Rule 8.126 Temporary Admission to the Bar

(A) Temporary Admission. Any person who is licensed to practice law in another state or territory, or in the District of Columbia, of the United States of America, or in any foreign country, and who is not disbarred or suspended in any jurisdiction, and who is eligible to practice in at least one jurisdiction, may be permitted to appear and practice in a specific case in a court or before an administrative tribunal or agency in this state when associated with and on motion of an active member of the State Bar of Michigan who appears of record in the case. An out-of-state attorney may appear and practice under this rule in no more than five cases in a 365-day period. Permission to appear and practice is within the discretion of the court or administrative tribunal or agency, and may be revoked at any time for misconduct. For purposes of this rule, an out-of-state attorney is one who is licensed to practice law in another state or territory, or in the District of Columbia, of the United States of America, or in a foreign country.

(1) Procedure.

(a) Motion. An attorney seeking temporary admission must be associated with a Michigan attorney. The Michigan attorney with whom the out-of-state attorney is associated shall file with the court or administrative tribunal or agency an appearance and a motion that seeks permission for the temporary admission of the out-of-state attorney. The motion shall be supported by an affidavit of the out-of-state attorney seeking temporary admission, which affidavit shall verify

(i) the jurisdictions in which the attorney is or has been licensed or has sought licensure;

(ii) that the attorney is not disbarred, or suspended in any jurisdiction, and is not the subject of any pending disciplinary action, and that the attorney is licensed and is in good standing in all jurisdictions where licensed; and

(iii) that he or she is familiar with the Michigan Rules of Professional Conduct, Michigan Court Rules, and the Michigan Rules of Evidence.

The out-of-state attorney must attach to the affidavit copies of any disciplinary dispositions. The motion shall include an attestation of the Michigan attorney that the attorney has read the out-of-state attorney’s affidavit, has made a reasonable inquiry concerning the averments made therein, believes the out-of-state attorney’s representations are true, and agrees to ensure that the procedures of this rule are followed. The motion shall also include the addresses of both attorneys.

(b) The Michigan attorney shall send a copy of the motion and supporting affidavit to the Attorney Grievance Commission. Within seven days after receipt of the copy of the motion, the Attorney Grievance Commission must notify the court or administrative tribunal or agency and both attorneys whether the out-of-state attorney has been granted permission to appear temporarily in Michigan within the past 365 days, and, if so, the number of such appearances. The notification shall also indicate whether a fee is due if the court or administrative tribunal or agency grants permission to appear. The court or administrative tribunal or agency shall not enter an order granting permission to appear in a case until the notification is received from the Attorney Grievance Commission.

(c) Order. Following notification by the Attorney Grievance Commission, if the out-of-state attorney has been granted permission to appear temporarily in fewer than 5 cases within the past 365 days, the court or administrative tribunal or agency may enter an order granting permission to the out-of-state attorney to appear temporarily in a case. If an order granting permission is entered, the court shall send a copy of the order to the Michigan attorney and the out-of-state attorney. The Michigan attorney in turn shall send a copy of the order to the Attorney Grievance Commission.

(d) Fee. If a fee is due, the order shall state that the appearance by the out-of-state attorney is effective on the date the attorney pays a fee equal to the discipline and client-protection portions of a bar member’s annual dues. If a fee is not due, the order shall indicate the effective date of the appearance. The attorney is required to pay the fee only once in any period between October 1 and September 30. The discipline portion of the fee shall be paid to the State Bar of Michigan for allocation to the attorney discipline system, and the client-protection portion shall be paid to the State Bar of Michigan for allocation to the Client Protection Fund.

(e) By seeking permission to appear under this rule, an out-of-state attorney consents to the jurisdiction of Michigan’s attorney disciplinary system.

The highlights of this new rule:

• A lawyer may be admitted under this rule in no more than five cases in any 365-day period
  
• The sponsoring lawyer and the lawyer to be admitted must make a showing of specified facts by affidavit, including a statement that the lawyer to be admitted is familiar with the court rules, evidence rules, and professional responsibility rules in Michigan
  
• The Attorney Grievance Commission must review and approve any admission before the trial court may enter an order granting temporary admission
  
• Bar fees as specified must be paid, but only once per year
• Admission under this rule includes consent to the jurisdiction of Michigan's attorney disciplinary system.
  

Rule 9.108 was amended to accommodate this change, and to require the Attorney Grievance Commission to keep a list of attorneys temporarily admitted.

Rule 15 of the Rules Concerning the State Bar of Michigan, entitled "Admission to the Bar", was amended to add a requirement that the State Bar notify the Attorney Grievance Commission when the required fees have been paid.

The Staff Comment states:

The Court plans to review these rules again within two years of their effective dates in light of the information gathered by the Attorney Grievance Commission.

Link

MCJI: Damages in third-party auto cases

Updated MCJI 67.17 to add provisions distinguishing uninsured from insured defendants. Effective September 2008.

Link

MCJI: Public Accommodations and Services

Added a new chapter containing a series of instructions governing claims under Michigan's Elliott-Larsen Civil Rights Act - MCJI 108.01 to 108.13. Adopted December 2008.

Link

MCJI: Comparative Negligence in Product Liability Cases

The Committee on Model Civil Jury Instructions, which has been delegated the responsibility to suggest and adopt amendments to the instructions, proposes to delete MCJI 25.41, governing the negligence of the plaintiff in product liability cases, and amend MCJI 25.45, governing the fault of non-parties, to add those provisions to that instruction.

The amendment, which is ostensibly to combine the instructions regarding allocation of fault, would also

• Add language to the non-party instruction that informs the jury that its allocation of fault to a non-party will reduce the verdict against the defendant, and
• remove all reference to breach of warranty claims.

The removal of breach of warranty references may do more harm than good. It may open the door to an argument, in the "fog of trial", that it should apply only in product liability cases predicated on negligence. The current explicit reference to breach of warranty claims would obviate that concern.

Link