On March 18, 2009, the Michigan Supreme Court issued an order advising the public that the Court is considering amending the Michigan Court Rules to address the disqualification of Supreme Court justices. The order presents three proposed rules for public consideration. Currently, the Michigan Court Rules do not explicitly address the disqualification of Supreme Court Justices. MCR 2.003 addresses the disqualification of judges, but there is no clear consensus that MCR 2.003 applies to the justices of the Supreme Court. Justices Weaver, Corrigan, and Young filed statements concurring with the Court's order, all urging the public to consider the issue. The order may be found here.
The three proposed rules differ in several ways. Justice Weaver provides a useful table explaining the major differences, as follows: Proposal C is an amendment to MCR 2.003; A and B propose new court rules. C provides a non-exclusive list of reasons supporting disqualification; A and B provide an exclusive list. A does not require disqualification; B and C do. C requires a written statement of findings; A does not; B permits but does not require one. Only C disqualifies a judge for bias against an attorney. Only A does not provide a review process for the justice's decision. A recognizes that justices have a "duty to sit"; B and C do not. Only B allows a justice to raise the issue of another justice's disqualification. A and C allow a motion for disqualification to be made on the basis of campaign speech; B does not. B limits disqualification because a family member is an attorney to cases where the family member is the attorney of record; A and C provide no such limitation. B and C shorten the time for filing a disqualification motion to 14 days after the disqualification grounds are or should have been discovered; A does not address the timeframe for bringing a motion.
Justice Weaver addresses these eleven differences in her concurrence. First, she argues that the Court should amend MCR 2.003, rather than adopt a new rule. Second, she suggests that the list of grounds for disqualification should not be exclusive. Third, the appearance of bias should be sufficient for disqualification. Fourth, the new rule should require a written explanation of the reasons for deciding the motion to disqualify. Fifth, bias against an attorney should be grounds for disqualification. Sixth, there should be some review process for the disqualification decision. Seventh, unlike Justice Corrigan, she does not believe that Michigan Supreme Court justices have a "duty to sit," and so the new rule should not recognize one. Eighth, justices should not be allowed to raise the issue of another justice's disqualification, because such a rule would quickly "polarize" the Court. Ninth, campaign speech may be a legitimate reason to question a justice's impartiality. Tenth, she notes that each proposed rule takes a different approach to disqualification based on familial bias; she does not express a preference for one over the others. Eleventh, again without expressing an opinion, she notes that two of the proposed rules shorten the timeframe for moving to disqualify a judge to fourteen days after the disqualification is or should have been discovered.
Justice Weaver also poses two additional questions to the public: (1) should a justice have to disclose a prior attorney-client relationship with a party or attorney; (2) should a justice have to disclose campaign contributions exceeding a specified amount from a party or attorney.
Justice Corrigan's concurrence addresses three main issues. She argues that the new rule should (1) preserve the justices' right to decide whether to disqualify themselves in the first instance; (2) avoid a standard requiring recusal for the mere appearance of bias; and (3) avoid a broad recusal rule because, in her view, Supreme Court justices may not be replaced.
Justice Young makes two points. One, he states that proposal A codifies the Court's unwritten traditional practice, which is similar to the U.S. Supreme Court's practice, and, two, he notes that the current interest in the disqualification rules is "manufactured crisis - and a political one at that." He is concerned that some attorneys see disqualification as a means to alter the "philosophical majority" of the court.
Justices Corrigan and Young also noted that Caperton v. A.T. Massey Coal Co., No. 08-22, was pending in the U.S. Supreme Court when this order issued. The Supreme Court has since issued a decision in Caperton. In Caperton, a judge had been elected while the appeal was pending, and one of the parties had contributed roughly $3 million to the judge's campaign. The judge refused to recuse himself, and ruled in favor of his contributor. The Supreme Court held that the due process clause requires recusal where "'under a realistic appraisal of psychological tendencies and human weakness,' [the judge's] interest [in the matter] 'poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.'" Id. at *13 (citation omitted). The Supreme Court held that the situation in Caperton created such a risk. The Caperton ruling will likely affect the recusal process in Michigan, regardless of whether one of the proposed rules is adopted. The Caperton opinion may be found here.