On July 21, 2009, in addition to reversing its previous, December 2008 opinion in U.S. Fidelity Ins. & Guaranty Co. v. Michigan Catastrophic Claims Ass'n, the Michigan Supreme Court also issued an order denying the Michigan Catastrophic Claims Ass'n ("MCCA") motion for recusal of Justice Hathaway. The order and related opinions can be found here. The MCCA alleged that Justice Hathaway's spouse, as a practicing plaintiff's attorney in No-Fault cases, has a direct financial interest in the outcome of the case. In denying the motion, Justice Hathaway concludes that simply because her husband practices in a particular area of law does not mean that he has a financial interest in the case. She specifically states, "I have no personal bias or prejudice for or against any party in this matter. Moreover, neither I nor any member of my immediate family has any real or arguable financial interest in this case."
Notably, Justices Kelly, Cavanagh and Weaver all concurred in denying the recusal motion, which is a slight departure from the Court's recusal practice of allowing each justice to decide motions for his/her recusal. While not addressing the merits of this particular motion, Justice Weaver's concurrence noted the progress towards the adoption of rules for disqualification of Michigan Supreme Court justices.
Justices Corrigan, Young and Markman all filed dissents. The general theme of the dissents was that additional briefing and argument was necessary to consider the implications of the United States Supreme Court decision of Caperton v. A T Massey Coal Co., Inc., 556 US ___ (No. 08-22, decided June 8, 2009). That case addressed constitutional due process concerns surrounding judicial recusal. In particular, the dissenters were uncertain as to whether Caperton conflicted with the Court's historical practice in addressing motions for recusal, and required all justices to participate in deciding a recusal motion. As that issue was not presented or decided, all of the dissenters acted according to the historical practice and did not participate in the determination of whether Justice Hathaway should recuse herself.