The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Something Is Rotten in the State of Wisconsin

Posted by judicialethicsforum on Tuesday, November, 24, 2009

The Wisconsin Supreme Court recently became the first state court to take post-Caperton, rule-based action.  (Michigan recently became the second; for more information, click here.)  Putting the merits to the side — ignoring them altogether, actually — the Wisconsin Supreme Court should be commended for taking expeditious action following the Supreme Court’s groundbreaking Caperton decision.  The praise ends there, unfortunately.  In a puzzling, recalcitrant move, the court adopted two rule amendments that appear to ignore both Caperton and its interpretation of the Due Process Clause.  Combining the amendments, they essentially state that contributions or expenditures — from any source and irrespective of amount — to elective judges in Wisconsin do not alone warrant recusal/disqualification.  That is not a brief restatement, but rather, a nearly exhaustive statement of the amendments (to verify, click here and here for the full text of the adopted amendments).  A state supreme court rule purporting to limit the reach of Caperton and constitutional due process seems anomalous; how such amendments are anything but scoffing and heel-digging remains to be explained.  Interestingly, the vote of the court was a deep split of 4-3, with Justice Gableman in the majority. 

One point of caution, at this early stage, is that we are reading from mere tealeaves.  The Wisconsin Supreme Court has not as yet published its orders or issued a press release.  One can hope that the court will explicate in what ways, if any, these amendments constitute learned contributions to the law of disqualification. 

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2 Responses to “Something Is Rotten in the State of Wisconsin”

  1. THE MICHIGAN SUPREME COURT’S NEW DISQUALIFICATION RULE
    AND
    PRACTITIONER’S LESSONS FROM A TALE OF TWO DISQUALIFICATIONS:

    By: David L. Moffitt*

    For the first time since the inception
    of statehood the Michigan Supreme Court [“MSC”] on 11-25-09 adopted what was arguably its first written rule specifying procedures for the disqualification of its own justices, in the form of amendments to MCR 2.003, that formerly appeared to apply by its terms to all jurists except justices. The already deep divisions in the court particularly evident in the past year were dramatically intensified, with the majority claiming progress and transparency in the adoption of the amendments, and the minority side of the 4-3 vote darkly branding the initiative as a sudden, unexplained play for advantage unconstitutionally threatening the court’s traditional operation and ultimately, perhaps, its very case-by-case decisional membership.

    While no heads have yet rolled, the
    chaotic dichotomy recalls Charles Dickens’s classic “A TaleOf Two Cities,” that begins with the apocryphal, mocking passage:

    “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity….”

    To which might be added, “it was an initiative of progress, it was a reaction of digression, it was a spring of transparency, it was a winter of unconstitutionality, there was scrutiny of impropriety, there was impropriety of scrutiny…” This article reviews the amendments to the disqualification rule, the diametrically opposed positions
    of the justices on the amendments, two interpretive cases handed down to date, the potential for further amendment, lessons for practitioners, and some potential practical consequences of actual implementation of the amendments.

    Prior Practice. Michigan’s high
    court generally adhered to a unwritten practice similar to that of the United States Supreme Court [“USSC,”] where the challenged justice alone made the decision whether recusal was appropriate, on a “actual bias” standard, with no review or vote by other justices regarding that unilateral decision permitted; the only review was to the USSC. This procedure was stated by the minority to have been in effect for some 173 years. The existing court rule for disqualification did not expressly apply to justices.

    The Amendments. The amendments, formally proposed and moved for adoption by Justice Hathaway, and supported by Justices Cavanagh, Weaver, and Chief Justice Kelly, were actually adopted 11-5-09 “with immediate effect,” but remained unavailable to the public in written order form until the day
    before Thanksgiving. Important provisions included that the rule would apply to the justices themselves, allowed the disqualification of a justice to be raised by another justice, established the “appearance of impropriety” as a ground for disqualification of any judge, required publication by a challenged justice of the reason for participation or not, and, upon motion by a party, permitted decision by the full court of whether a challenged justice should be recused.

    The Concurring Justices: “Progress” And “Transparency” Concurring, Justice Cavanagh asserted that there was no reasonable basis that a justice accused of bias regardless of the amount of evidence that he was actually biased should be the only one who decides whether he should be disqualified, except “that we have always done it this way,”and stated the practice was indefensible to the public and “incongruous with reason.” Justice Weaver hailed the change as a “positive historical step forward toward achieving more transparency and fairness in the Michigan Supreme Court.

    Chief Justice Kelly found that the Supreme Court’s decision in Caperton v A.T. Massey Coal Company, Inc.demonstrated that the decision of a justice to recuse one’s self is inherently subjective, that the due process clause requires an objective decision, and that an independent inquiry into in individual justice’s refusal to recuse, that has now been written into the rule, may be necessary to satisfy due process.

    The Dissenting Judges: “Constitutional Crisis.” Opposing votes to the amendments were cast by Justices Markman, Corrigan and Young. Justice Corrigan’s dissent characterized the changes as the most important issue she had ever worked on, inflicting a “lacerating wound to this institution,” “eviscerating fundamental freedoms, ” that would “precipitate a constitutional crisis,”and invoked George Orwell’s Animal Farm maxim “that all animals are equal, but some are more equal than others,” in declaring that “only the four justices adopting these rules arrogate to themselves this new, ‘more equal’ dominion over their colleagues.”

    Justice Corrigan observed that the to the extent the impetus for amendments included the U.S. Supreme Court’s reversal in Caperton of a West Virginia Supreme Court Justice’s refusal to recuse himself despite massive campaign contributions received from a pending litigant, that decision changed only the standard for recusal, not the identity, of the decision maker of the recusal decision.

    Interpreting the amendments as potentially allowing “removal of a justice” from office, she deemed them contrary to the state constitution, which authorizes removal only by impeachment , state joint-legislative declaration by two-thirds vote on reasonable cause, or by the Court itself upon recommendation by the Judicial Tenure Commission, and contrary to the federal constitution, as detailed in Justice Young’s dissent.

    Justice Young declared the amendments denied First Amendment constitutional protections to judicial campaign speech of justices of the court itself, and advocated further amendments affording to challenged justices the right to counsel, the right to file a brief, and the right to an evidentiary hearing on material issues. Although due process demands the right to challenge bias of those voting on another justice’s recusal refusal, the new procedure in his view lacked any provision for such review.

    Interpretive Case Law: Pellegrino–Political Speech As Evidence Of Bias Or The Appearance of Impropriety. Two cases before the court in which recusal is sought may shape future interpretation of the amended rule, Pellegrino v Ampco Systems , a challenge by the Feiger law firm in a civil case to alleged bias on the part of Justices Markman, Young and Corrigan, referencing political speech as evidence of actual bias, and People v Alexander Aceval, a criminal case in which recusal of Justice Hathaway was sought on rehearing on an actual bias and appearance of impropriety standard in the context of alleged personal ties to the pending cause.

    The Pellegrino recusal challenge was filed before the amendment were adopted and alleged that various statements made by Justices Young, Corrigan, and Markman in the course of political campaigns and public addresses demonstrated personal bias against the Feiger firm. Justices Young and Corrigan filed their responses 11-18-09, after the “effective date” of the amendments but before the Order was available 11-25-09. They asserted the applicability of the prior practice, disclaimed actual prejudice or bias, and declined to recuse themselves, seemingly avoiding full court review of their respective unilateral decisions

    Justice Markman’s decision not to
    disqualify himself, made after the amendments, required issuance of a detailed Statement in support. He noted that he had decided numerous decisions in the moving firms’s favor since making the questioned remarks during the pendency of Mr. Feiger’s 1990 gubernatorial campaign, and that he had ruled favorably in the past for causes for which he had little personal regard, and unfavorably for causes for which he had considerable personal regard. .

    His decision was subject, upon motion by the plaintiff, to a full court vote. In upholding his decision, Justices Kelly and Cavanagh noted the “staleness” of the remarks made over ten years ago, and Justices Weaver and Hathaway, concurring, held that the appearance of impropriety standard would not be retroactively applied to statements made by a justice concerning a party or a party’s attorney prior to the rule’s amendment, but that the standard would be prospectively applied to statements made after the effective date of the amendments. No rehearing was sought.

    Prospective Interpretive Case Law: Aceval–Judicial Relationships, Bias And The Appearance of Impropriety. The grounds for recusal in People v Aceval were more complex. A first trial, now
    admitted by the trial judge, prosecutor and two principal police officers to have been perjured practically from beginning to end, ended in mistrial. It was retried, in violation of due process and double jeopardy safeguards, according to defendant Aceval, in part upon the testimony for the prosecution by the officers and the involved judge attempting to explain and excuse their perjurious conduct in the first trial. Aceval plead soon after one of his retained attorneys was ejected from the case. The trial judge, prosecutor, and officers were subsequently criminally charged, not by the involved prosecutor’s office, but three years later by the Michigan Attorney General [“AG”] regarding their perjury at the first trial. Confidential interviews were conducted by the Attorney Grievance Commission [“AGC”] and the AG of the involved judge, the police, and the involved prosecutor’s top staff members.

    The MSC effectively denied Aceval’s leave to appeal his conviction on a 3-3 vote, with Justice Corrigan recusing herself to be a potential witness in “a related case. ” Newspaper investigation elicited that the “related case” testimony was to be as a character witness on behalf of all of the accused trial judge.

    Also denied was a defense motion to compel the production of the confidential interviews which Aceval alleged revealed the full extent of suppression of the scheme in the prosecutor’s office, implicated the highest level of the prosecutor’s staff, and proved the re-trial was similarly perjured and obstructed. Aceval sought rehearing of both application and motion, and moved to recuse Justice Hathaway from the rehearings, alleging that the interviews the court refused to order be disclosed included that of her ex-husband, the chief assistant in the involved prosecutor’s office, who was stated in a AG summary of the confidential interviews to have been, at some point, aware of the perjury, and that her vote to deny disclosure of the interviews was in reality a vote shielding her ex-husband’s supervisory actions, and his colleagues, from further scrutiny in the case.

    The motion to disqualify further alleged that Justice Hathaway was at the time a judge in the same circuit and division where the perjury trials took place, under considerable media coverage, and that she and other circuit judges there situated failed:
    (1) To report or question the misconduct;

    (2) To raise the impropriety of the involved judge, still uncharged, testifying in the re-trial, before a judge of their same circuit and division, as a prosecution witness regarding her purported justification for actively allowing and concealing from the defense the perjury in the first trial;

    (3) To raise the impropriety of that judge continuing to sit and hear cases in that circuit and division;

    (4) To raise the impropriety of the obvious conflict of interest of the involved prosecutors’s office in re-trying that case, once transcripts (made by the involved judge and prosecutor in-camera regarding their operation of the perjury scheme) surfaced, in that same circuit and division.

    All demonstrative, the motion alleged, of actual and figuratively “incestuous” bias amounting to a “culture of judicial protectionism” in favor of both the involved, testifying judge and the involved prosecutor’s office.

    The motion and supporting subsequent briefs alleged that to an outsider, this was an “appearance of impropriety”equivalent to one bank teller looking the other way while another packed a bag with the banks’s funds; the non-reporting bank teller could not be counted on to be an objective judge of the other’s unlawful conduct.

    In the re-trial the retained attorney that had discovered the alleged perjury scheme was sua sponte ejected from the re-trial on the pretext that his “limited appearance”(for pretrial motions and interlocutory appeal, not trial)(specifically authorized by written order of the involved judge prior to the first trial) were prohibited in that circuit and division by a prior, uncited, explicit MSC directive.

    The motion to disqualify alleged that Justice Hathaway not only had personal knowledge of whether or not there existed any such directive to that circuit and division, which the MSC’s staff had acknowledged could not be located if it ever existed, but that actual bias stemming from personal involvement in that division and circuit caused misapplication of that knowledge in her denying appellate review of the ejection on Sixth Amendment denial of counsel grounds.

    The ejection, moreover, took place on the very day that additional disclosures were demanded by counsel from the prosecutor of every person in the prosecutor’s office who had known of the first trial perjury, of what “deal” had been approved for the testifying judge, and why she and the officers were not being criminally charged (before testifying, enhancing their credibility as prosecution re-trial witnesses ) by that very prosecutor’s office (on the basis of the self-incriminating testimony each would be offering in re-trial), a situation that could only have been pre-approved at the highest level, e.g. the chief assistant prosecutor, Justice Hathaway’s ex-husband. If not demonstrative of actual bias, the motion continued, the appearance of impropriety was sufficient for Justice Hathaway’s recusal from any rehearing of the application, particularly on that issue, and rehearing of the motion to disclose the ex-spouse’s/chief assistant prosecutor’s AGC and AG interviews.

    The Pellegrino disqualification motion had as its subject an opponent of the new rule, Justice Markman; his Statement had the air of politely declining to tour the progress on the cutting-edge contraption being erected in the Place de la Revolution. Judicial product roll-outs are not opulent affairs like those of auto manufacturers, and not even a figurative dole of bread or a hand-out tri-color cockade preceded the new rule’s posting in the legal market square. But with the ostensible promulgator of the rule herself as the subject of the second such pending motion, a debut of substance, a engine-roar-to-life demonstration of the “transparency” principle, and a definitive discussion of the now-made-locally “impropriety” fromage could be reasonably anticipated. Justice Markman had sharply criticized the standard:

    “The threshold problem, of course, with the “appearance of impropriety” standard is its utter vagueness. What is an “appearance of impropriety” and from whose standpoint is the “appearance of impropriety” to be gauged?”

    The motion presented an opportunity to respond to the criticism, provide leadership complementary of the novel judicial experiment, and analysis of issues sufficiently thorough for first time interpretation of the new rule.

    The Supplemental Affidavit in support of disqualification invited the challenged justice to make “a bold and magnanimous gesture in the defense of the moral and ethical outer boundaries of the newly revised disqualification rule proposed by the Justice herself.”

    Justice Delays…Justice Denies. The disqualification motion and rehearing motion were filed 1–16-09, and a stay of proceedings was sought on the latter until the disqualification was decided. The Statement of Justice Hathaway was filed 4-22-10, almost 6 months after the motion was filed.
    In a Statement issued that same day, Justice Markman criticized the new process as allowing almost a full term to pass without a decision on the substance of the case itself, and decried that the current [post 3-16-10] procedure, unlike that applicable to him under Pellegrino, only allowed the full court to decide a denied recusal when the litigant [e.g. not a justice] moved for entire court review.

    Letting Them Eat Gateau. The
    Justice’s Statement was an unenlightening but not unexpected denial. Calling the challenge a “frivolous insult to the integrity of the entire Third Circuit Bench and Prosecutor’s Office,” similarly, perhaps, to the egregious facts of the case itself, the Justice’s Statement delved little into the substance of the allegations, instead largely restating them as harmless-sounding straw men and then facilely dismissing them without extended explanation.

    The allegation of her inability to afford objective consideration to the subject judicial and prosecutorila misconduct, as demonstrated by her immediate presence at, but indifference to, the events publicly unfolding practically down the hall, was characterized in the Statement as being merely “a member of the same trial bench,” and rationalized as “Justices. . . must routinely review matters by members of …courts where they formerly served.” No comment was devoted to how frequently and how “routinely” Justices review the spectacle of their formerly co-equal judicial colleague testifying, as a prosecution witness, in the same judicial division, in front of another co-equal same-division judicial colleague, about the perjury scheme they’d been personally running [and concealing] in the court room down the hall the past few months, and their own silence in the face of such proceedings, proceedings that could only have been approved by their own ex-husband [regarding critical interviews of whose (potential) involvement their vote on appellate review was to not reveal].

    Equally dismissive was the disclaimer of any knowledge of the other substantive basis of the disqualification challenge, the voting not to disclose to the defense the content of AG and AGC under-oath interviews of Chief Assistant Prosecutor Richard Hathaway and other top-echelon prosecutors about possible knowledge or approval of the perjury scheme:

    “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.”

    Even the few details provided in this article alone, that only with approval of the very highest prosecutorial managerial echelon could a circuit judge testify as her perjury scheme complicity as a prosecution witness without prior prosecution or prior disclosure of any “deal” to do so, meaning approval by her ex-husband/chief assistant prosecutor, would seem to sufficiently outline the circumstances of the alleged “appearance of impropriety.” Ironically, the “details” the Statement stated were lacking would include exactly those contained in the material the Justice voted to deny to the defense.

    The Statement’s only discussion of the “appearance of impropriety “ standard was a citation to Caperton.

    The Statement curiously noted:

    “This matter was transferred to Judge Vera Massey Jones as a result of allegations of misconduct by Judge Waterstone. Because the allegations of misconduct are the subject matter of a pending case, I am precluded from addressing any aspect of the allegations in this Statement.”

    Unless the Statement operates under unstated principles so peculiar to the disqualification process as to be generally unknown to the practicing appellate bar, or so well known that no citation to them was necessary, declining to consider “allegations of misconduct by Judge Waterstone” would seem to completely preclude [as the entire case revolves around the unique element of judicial misconduct that aided at every stage the prosecutorial perjury scheme and kept it secret by not requiring pre-deliberation correction of the perjury to the jury, and then in falsely declaring the fully deceived jury to have been “hung”] any substantive evaluation by the Justice of any argument on appeal by appellant.

    Other courts seem to not have been similarly constrained. The Court of Appeals opinion called the conduct of Judge Waterstone and APA Plants “disgraceful,” “opprobrious,” and a “violation of due process.”

    The seeming reticence in the Justice’s Statement, alone of all jurists to consider the matter to date, was cited as independent evidence of bias in defendant’s subsequently filed Motion For Entire Court Consideration of the recusal. Practitioners should not overlook the potential of a Justice’s Statement itself to provide new support for the disqualification. A new motion for disqualification based upon such new evidence is not expressly precluded under the new rule, nor, apparently, is a motion for reconsideration of the entire court’s order regarding its consideration of the matter.

    Full Court Review: Gateau Sufficient Fare For The Present. The stated promulgator of the amendments, Justice Hathaway, found a benign reception despite the anti-rule change rhetoric of her dissenting colleagues, and notwithstanding the more complicated personal factual scenario of Aceval. The entire court confirmed her disqualification denial 6-4-10, as this article went to press, saying only, “because the reasons she gave are sufficient.”

    In concurring, Justice Markman questioned the relevance of the personal factual denials and declarations in the Justice’s Statement to the objective aspect of the “vague and formless” impropriety standard. While agreeing that defendant’s allegations raised “legitimate concerns” regarding the standard, he nonetheless termed the allegations of circumstances described in this article as too “scattershot and undisciplined” for Justice Hathaway to have answered any better than had been done. Justice Young simply reiterated his position from Pellegrino that the new procedure was “constitutionally flawed,” and declined to participate.

    Justice Weaver has long insisted on her personally funded website that the Michigan Constitution permits the appointment of a temporary “replacement justice” where another justice is disqualified. Just such a motion, to appoint a temporary Justice in the absence of the already disqualified Justice Corrigan in Aceval, was denied without elaboration in the 6-4-10 Order.

    Also then denied was a motion seeking disclosure of the circumstances of Justice Corrigan’s self-recusal to testify as a character witness on behalf of [former] Judge Waterstone at her future potential criminal trial. Justice Weaver acidly took issue with that recusal, in both Aceval and a related appeal decided the same day, People v Waterstone, deeming Justice Corrigan’s conduct in direct violation of Code of Judicial Conduct Canon 2C and demanding to know:

    “Has Justice CORRIGAN agreed to be a “character witness” in this case as quoted in
    the Detroit News?

    Has Justice CORRIGAN been subpoenaed in this case? If so, when?

    What is Justice CORRIGAN’s relationship, if any, to the accused defendant Judge Waterstone?”

    Ending the concurring opinions in such stirring terms demonstrates her personal commitment to a broad “transparency” that embraces not only the majority’s initiative for participation of additional jurists in disqualification decisions, but the pioneering notion that judicial decision-making should accessible to the public and not like that of a “secret club.”

    The role of enlightened harbinger of a potentially extended paradigm of transparency carries a high price at the high court these days, however. Justices Markman, Young, and Corrigan recently filed a Judicial Tenure Commission complaint against Justice Weaver for allegedly revealing details of the Court’s deliberations, and a 5-2 majority (Weaver and Hathaway, JJ, dissenting) turned down effectively repealing the rule involving such disclosures.

    Conclusion. The newly granted power of a majority to disqualify one or more of their colleagues against their decision otherwise is simultaneously praised as the long-awaited reform needed to ensure that an actually biased justice does not unilaterally thwart disqualification, and vilified as a tool to disenfranchise the voters’ electoral choice and as the trigger of an impending constitutional crisis.

    It is unclear whether a challenged Justice could effectively thwart the a challenge by similarly challenging for recusal one or more of the remaining justices, whether an actual disqualification of a sitting Justice would be appealed by the challenged Justice himself, and to whom, and whether such challenges and appeals of challenges could be accomplished in a time frame that did not bring the cases, or worse, the classes or categories of cases, to an impractically lengthy halt.

    There is little doubt that the number of such challenges will increase, as appellate practitioners indulge the new opportunity to test progressively ingenious strategic disqualification tactics, and devise novel efforts to divide, pick, and choose between the justices in development of a special issue-by-issue judicial constituency, based upon judicial philosophy, political sympathy, and vulnerability to ever-enlarging categories of potential “appearances of impropriety.”

    Future rule changes with additional consequences may not be far off. Chief Justice Kelly stated at the 11-5-09 meeting that the “question of when financial contributions to sitting justices constitute the appearance of bias or the probability of bias such as to require disqualification” was “an important matter that has to be addressed.”
    Practitioners should note that whatever the new, laudable-in-concept “transparency”may ultimately mean, there is limited present inclination in the high court, or any court in this state, to plumb new paradigms of public scrutiny of judicial processes, meaning not just its deliberative processes, but also the politics of the interrelatedness of the involved interests and identities of its actors, the specter of judicial self-protectionism, and of the unpreparedness of the state’s legal system to deal with the first-impression instance of vertically-integrated judicial-prosecutor-police misconduct evident in the underlying factual basis of the Aceval matter.

    In applying the new amendments, the court apparently let bygones be bygones for Justice Markman in Pellegrino, but appeared to be ready to actively police future political speech under the largely undefined ‘impropriety” standard.

    In Aceval, the court declined an opportunity to differentiate the objective appearance of “impropriety”from subjective political and personal circumstances, or to ask too much more than a flat personal denial by the involved Justice. In both cases, the test still appears to be essentially Cartesian, i.e. “I [don’t] think so, therefore I’m not [biased].”

    The widely divergent views of the justices on the content, interpretation, and application of the amendments portend difficult days ahead for the court. Former USSC Justice Felix Frankfurter observed that the “highest example of judicial duty is to subordinate one’s personal will and one’s private views to the law. ”

    The practicing bar and public can only hope the competitive, high-stakes maneuvering for advantage in the high court does not supplant fair, unbiased, final decision-making on the merits according to law, in a spirit, as Dickens ends his tale of that troubled republic, that “It is a far, far better thing that I do, than I have ever done.”

    Editor’s note: As this issue went to press the Michigan Supreme Court on 6-4-10 vacated upon reconsideration the 3 to 3 denial of the Application For Leave and scheduled oral argument on whether the application should be granted or other summary action taken.

    About the Author

    * David L. Moffitt, of the Law Offices of David L. Moffitt & Associates, has specialized in civil and criminal trial and appellate litigation for over 30 years, and is a member of the SBM Litigation Section l and Prisons And Corrections Section Councils. A former elected county official, he is a past recipient of SEMCOG’s Taubman Fellowship, the SBM’s Citizen Lawyer recognition, and the Thomas M. Cooley Law School’s “Most Distinguished Brief To The Michigan Supreme Court” Award. He is counsel for appellant Alexander Aceval on appeal.

    END NOTES

    1. Johnson v Henry Ford Hospital, 477 Mich 1098 (2007)(“MCR 2.003. . . has never been held applicable to disqualification of Justices.”); but see Weaver, J.,concurring/dissenting opinion, “[I]n Adair v. Michigan, 474 Mich. 1027, 1043, 709 N.W.2d 567 (2006), Chief Justice Taylor and Justice Markman stated that “[p]ursuant to MCR 2.003(B)(6), we would each disqualify ourselves if our respective spouses were participating as lawyers in this case, or if any of the other requirements of this court rule were not satisfied.” Justice Young concurred fully in this legal analysis. Id. at 1053.”Id.

    2. MCR 2.003 (A).

    3. MCR 2.003 (B).

    4. MCR 2.003 (C)(1)(b)(ii).

    5. MCR 2.003 (D)(3)(b).

    6. MCR 2.003 (D)(3)(b).Practitioners should note that full court hearing can only be initiated by the party upon motion filed within 14 days after the Statement denying the motion is issued, and upon filing, “[t]he entire court shall then decide the motion for disqualification de novo . . . .”Id. [Emphasis added].

    7. Caperton v A.T. Massey Coal Co., Inc. __US__; 129 SCt 2252; 173 LEd 2d 1208 (2009).

    8. Const 1963, art 11, section 7.

    9. Const art 6. Section 25.

    10. Const art 6, section 30(2).

    11. Pellegrino v Ampco Systems, MSC
    No. 137111, Motion for Disqualification decided 11-28-10.

    12. People v Alexander Aceval, MSC
    No. 138577.

    13. The Detroit News, “Supreme Court
    judge could be trial witness.” Doug Guthrie,
    11-28-09.

    14. ADM 2009-4, p 18.

    15. People v Alexander Aceval, MSC
    No. 138577, Statement Of Justice Markman Regarding Defendant’s Motion To
    Disqualify Justice Hathaway (4-22-10), passim.

    16. People v Alexander Aceval, MSC
    No. 138577, Statement Of Justice Hathaway Denying Defendant’s Motion To Disqualify (4-22-10), at p 5.

    17. “Whether the conduct would
    create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. . . .”

    People v Alexander Aceval, MSC No. 138577, Statement Of Justice Hathaway Denying Defendant’s Motion To Disqualify (4-22-10) at p 4, citing Caperton, at 2255.

    18. People v Alexander Aceval, MSC
    No. 138577, Concurring Opinion Of Justice Markman, Entire-Court Order Denying Defendant’s Motion To Disqualify (4-22-10), at p 4.

    19. People v Alexander Aceval, MSC
    No. 138577, Opinion Of Justice Markman, Entire-Court Order Denying Defendant’s Motion To Disqualify (4-22-10), at p 4.

    20. See justiceweaver.com, Justice
    Weaver’s comments to “ADM File No. 2009-04 Proposals Regarding Procedure for Disqualification Of Supreme Court Justices, ”state in part:

    “Art 6, § 23 is the constitutional authority that allows, but does not require, the Supreme Court, as it has done in the past and continues to do so today, to “authorize persons who have been elected and served as judges [i.e., current and retired trial judges, Court of Appeals judges, and
    Supreme Court Justices who have
    been elected and served as judges] to perform judicial duties for limited periods or specific assignments” in the trial courts and the Court of Appeals when illness, disqualification, recusal, or other temporary occurrence or need prevents judicial duties from being performed by trial or Court of Appeals judges.”

    21. People v Mary Waterstone, MSC
    No. 140775, Concurring Opinion of Justice Weaver, (6-4-10), at 2.

    22. The Code of Judicial Conduct,
    Canon 2C, states:

    ‘A judge should not allow family, social, or other relationships to
    influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others. A judge should not appear as a witness in a court proceeding unless subpoenaed.’

    23. People v Mary Waterstone, MSC
    No. 140775, Concurring Opinion of Justice Weaver, (6-4-10), at 2.

    24. “ Justice YOUNG’s approach as to
    the disqualification rule is quite inconsistent with his condemnation of my position that the ‘Gag Order,’ AO 2006-8,2 is unconstitutional; is in conflict with and in violation of Canon 3A(6) of the Code of Judicial Conduct; and is an effort to establish secrecy (i.e., a ‘secret club’ rule) to keep me from performing my duty to the people to inform them of what I believe they need to know—no more, no less—about how, what, when and where the Court performs the people’s judicial business.”

    25. The involved rule is AO 2006-8,
    which states that:

    “All correspondence, memoranda and discussions regarding cases or
    controversies are confidential. This obligation to honor confidentiality does not expire when a case is decided. The only exception to this obligation is that a Justice may disclose any unethical, improper or criminal conduct to the JTC or proper authority.”
    Id.

    Justice Weaver refers to the foregoing as the “Gag Order,” stating that it was:

    “adopted on an emergency basis, without notice to the public and
    to some justices by a 4-3 vote, over three (3) years ago on December 6, 2006. It was only recently, at the May 12, 2010 public administrative conference, that a majority of the Supreme Court effectively “retained” the “Gag Order” to make it retroactively effective to January 17, 2007.”

    People v Aceval, MSC No.
    138577, Order Of Entire Court Denying Disqualification, Concurring Opinion of Justice Weaver, (6-4-10) at p 2.

  2. THE MICHIGAN SUPREME COURT’S NEW DISQUALIFICATION RULE:
    SMOOTH SAILING ON THE WINDS OF “TRANSPARENCY”AND “PROGRESS” OR “UNCONSTITUTIONALITY MAELSTROM” AHEAD?

    By: David L. Moffitt*

    On November 25, 2009, the Michigan Supreme Court, for the first time since the inception of statehood, adopted its arguably first [1] written rule specifying procedures for the disqualification of its own justices, in the form of amendments to MCR 2.003, that formerly appeared to apply by its terms to all jurists except justices. The already deep divisions in the court particularly evident in the past year were dramatically intensified, with the majority claiming progress and transparency in the adoption of the amendments, and the minority side of the 4-3 vote darkly branding the initiative as a sudden, unexplained play for advantage unconstitutionally threatening the court’s traditional operation and ultimately, perhaps, its very case-by-case decisional membership.

    This article reviews significant positions of the justices on the amendments, discusses the only interpretive case handed down to date, evaluates the potential for further amendment, considers prospective interpretation by the sole undecided case seeking disqualification under the new provisions, and reviews the potential practical consequences of actual implementation of the amendments.
    Prior Practice. Michigan’s high court generally adhered to a unwritten practice similar to that of the United States Supreme Court, where the challenged justice alone made the decision whether recusal was appropriate, on a “actual bias” standard, with no review or vote by other justices regarding that unilateral decision permitted; the only review was to the U.S. Supreme Court. This procedure was stated by the minority to have been in effect for some 173 years. The existing court rule for disqualification did not expressly apply to justices.

    The Amendments. The amendments, formally proposed and moved for adoption by Justice Hathaway, and supported by Justices Cavanagh, Weaver, and Chief Justice Kelly, were actually adopted November 5, 2009 “with immediate effect,” but remained unavailable to the public in written order form until the day before Thanksgiving. Important provisions included that the rule would apply to the justices themselves [2], allowed the disqualification of a justice to be raised by another justice[3], established the “appearance of impropriety” as a ground for disqualification of any judge[4], required

    David L. Moffitt, of the Law Offices of David L. Moffitt & Associates, specializes in civil and criminal trial and appellate litigation, and is a member of the SBM Litigation Section Council and Prisons And Corrections Section Council. A former county and state elected official, he is a past recipient of SEMCOG’s Taubman Fellowship, and the Thomas M. Cooley Law School’s “Most Distinguished Brief To The Michigan Supreme Court” Award

    publication by a challenged justice of the reason for participation or not [5], and, upon motion by a party, permitted decision by the full court of whether a challenged justice should be recused.[6]

    The Concurring Justices: “Progress” And “Transparency” Concurring, Justice Cavanagh asserted that there was no reasonable basis that a justice accused of bias regardless of the amount of evidence that he was actually biased should be the only one who decides whether he should be disqualified, except “that we have always done it this way,”and stated the practice was indefensible to the public and “incongruous with reason.” Justice Weaver hailed the change as a “positive historical step forward toward achieving more transparency and fairness in the Michigan Supreme Court.”

    Chief Justice Kelly found that the Supreme Court’s decision in Caperton v A.T. Massey Coal Company, Inc.[7]demonstrated that the decision of a justice to recuse one’s self is inherently subjective, that the due process clause requires an objective decision, and that an independent inquiry into in individual justice’s refusal to recuse, that has now been written into the rule, may be necessary to satisfy due process.

    The Dissenting Judges: “Constitutional Crisis.” Opposing votes to the amendments were cast by Justices Markman, Corrigan and Young. Justice Corrigan’s dissent characterized the changes as the most important issue she had ever worked on, inflicting a “lacerating wound to this institution,” “eviscerating fundamental freedoms, ” that would “precipitate a constitutional crisis,”and invoked George Orwell’s Animal Farm maxim “that all animals are equal, but some are more equal than others,” in declaring that “only the four justices adopting these rules arrogate to themselves this new, ‘more equal’ dominion over their colleagues.”

    Justice Corrigan observed that the to the extent the impetus for amendments included the U.S. Supreme Court’s reversal in Caperton of a Pennsylvania Supreme Court Justice’s refusal to recuse himself despite massive campaign contributions received from a pending litigant, that decision changed only the standard for recusal, not the identity, of the decision maker of the recusal decision.

    Interpreting the amendments as potentially allowing “removal of a justice” from office, she deemed them contrary to the state constitution, which authorizes removal only by impeachment [8], state joint-legislative declaration by two-thirds vote on reasonable cause, [9], or by the Court itself upon recommendation by the Judicial Tenure Commission.[10], and contrary to the federal constitution, as detailed in Justice Young’s dissent.

    Justice Young declared the amendments denied First Amendment constitutional protections to judicial campaign speech of justices of the court itself, and advocated further amendments affording to challenged justices the right to counsel, the right to file a brief, and the right to an evidentiary hearing on material issues. Although due process demands the right to challenge bias of those voting on another justice’s recusal refusal, the new procedure in his view lacked any provision for such review. The results of a March 11, 2010 further administrative meeting on related agenda items including Justice Young’s proposed amendments were not available at publication. Informed sources suggest that these amendments were not adopted, but that a presently unspecified amendment to the time for filing [11] of recusal challenges proposed by a member of the prevailing side was adopted.

    Interpretive Case Law: Pellegrino–Political Speech As Evidence Of Bias Or The Appearance of Impropriety. Two cases before the court in which recusal is sought may shape future interpretation of the amended rule, Pellegrino v Ampco Systems [12], a just-decided challenge by the Feiger law firm in a civil case to alleged bias on the part of Justices Markman, Young and Corrigan, referencing political speech as evidence of actual bias, and People v Alexander Aceval[13], a criminal case, seeking recusal of Justice Hathaway on rehearing on an actual bias and appearance of impropriety standard in the context of alleged personal ties to the pending cause.

    The Pellegrino recusal challenge was filed before the amendment were adopted and alleged that various statements made by Justices Young, Corrigan, and Markman in the course of political campaigns and public addresses demonstrated personal bias against the Feiger firm. Justices Young and Corrigan filed their responses November 18, 2009, after the “effective date” of the amendments but before the Order was available November 25, 2009. They asserted the applicability of the prior practice, disclaimed actual prejudice or bias, and declined to recuse themselves, seemingly avoiding full court review of their respective unilateral decisions
    .
    Justice Markman’s decision not to disqualify himself, made after the amendments,
    required issuance of a detailed statement in support. He noted that he had decided numerous decisions in the moving firms’s favor since making the questioned remarks during the pendency of Mr. Feiger’s 1990 gubernatorial campaign, and that he had ruled favorably in the past for causes for which he had little personal regard, and unfavorably for causes for which he had considerable personal regard. .

    His decision was subject, upon motion by the plaintiff, to a full court vote. In upholding his decision, Justices Kelly and Cavanagh noted the “staleness” of the remarks made over ten years ago, and Justices Weaver and Hathaway, concurring, held that the appearance of impropriety standard would not be retroactively applied to statements made by a justice concerning a party or a party’s attorney prior to the rule’s amendment, but that the standard would be prospectively applied to statements made after the effective date of the amendments. No rehearing was sought.

    Prospective Interpretive Case Law: Aceval–Judicial Relationships, Bias And The Appearance of Impropriety. The grounds for recusal in the remaining unresolved disqualification motion before the court, People v Aceval, are more complex. A first trial, now admitted by the trial judge, prosecutor and two principal police officers to have been perjured practically from beginning to end, ended in mistrial. It was retried, in violation of due process and double jeopardy safeguards, according to defendant Aceval, in part upon the testimony for the prosecution by the officers and the involved judge attempting to explain and excuse their perjurious conduct in the first trial. Aceval plead soon after one of his retained attorneys was ejected from the case. The trial judge, prosecutor, and officers were subsequently criminally charged, not by the involved prosecutor’s office, but three years later by the Michigan Attorney General regarding their perjury at the first trial. Confidential interviews were conducted by the Attorney Grievance Commission and the Attorney General of the involved judge, the police, and the involved prosecutor’s top staff members.

    The Michigan Supreme Court effectively denied Aceval’s leave to appeal his conviction on a 3-3 vote, with Justice Corrigan recusing herself to be a potential witness in “a related case. ” Newspaper investigation elicited that the “related case” testimony was to be as a character witness on behalf of all of the accused trial judge. Also denied was a defense motion to compel the production of the confidential interviews which Aceval alleged revealed the full extent of suppression of the scheme in the prosecutor’s office, implicated the highest level of the prosecutor’s staff, and proved the re-trial was similarly perjured and obstructed. Aceval sought rehearing of both application and motion, and moved to recuse Justice Hathaway from the rehearings, alleging that the interviews the court refused to order be disclosed included that of her ex-husband, the chief assistant in the involved prosecutor’s office, who was stated in a Attorney General summary of the confidential interviews to have been, at some point, aware of the perjury, and that her vote to deny disclosure of the interviews was in reality a vote shielding her ex-husband’s supervisory actions, and his colleagues, from further scrutiny in the case.

    The motion to disqualify further alleged that Justice Hathaway was at the time a judge in the same circuit and division where the perjury trials took place, under considerable media coverage, and that she and other circuit judges there situated failed: (1) To report or question the misconduct; (2) To raise the impropriety of the involved judge, still uncharged, testifying in the re-trial, before a judge of their same circuit and division, as a prosecution witness regarding her purported justification for actively allowing and concealing from the defense the perjury in the first trial; (3) To raise the impropriety of that judge continuing to sit and hear cases in that circuit and division; (4)To raise the impropriety of the obvious conflict of interest of the involved prosecutors’s office in re-trying that case, once transcripts (made by the involved judge and prosecutor in-camera regarding their operation of the perjury scheme) surfaced, in that same circuit and division, all demonstrative, the motion alleged, of actual and figuratively “incestuous” bias amounting to a “culture of judicial protectionism” in favor of both the involved, testifying judge and the involved prosecutor’s office.

    In the re-trial the retained attorney that had discovered the alleged perjury scheme was sua sponte ejected from the re-trial on the pretext that his “limited appearance”(for pretrial motions and interlocutory appeal, not trial)(specifically authorized by written order of the involved judge prior to the first trial) were prohibited in that circuit and division by a prior, explicit Supreme Court directive. The motion to disqualify alleged that Justice Hathaway not only had personal knowledge of whether or not there existed any such directive to that circuit and division, which the Supreme Court’s staff had acknowledged could not be located if it ever existed, but that actual bias stemming from personal involvement in that division and circuit caused misapplication of that knowledge in her denying appellate review of the ejection on Sixth Amendment denial of counsel grounds.

    The ejection, moreover, took place on the very day that additional disclosures were demanded by counsel from the prosecutor of every person in the prosecutor’s office who had known of the first trial perjury, of what “deal” had been approved for the testifying judge, and why she and the officers were not being criminally charged (before testifying, enhancing their credibility as prosecution re-trial witnesses ) by that very prosecutor’s office (on the basis of the self-incriminating testimony each would be offering in re-trial), a situation that could only have been pre-approved at the highest level, e.g. the chief assistant prosecutor, Justice Hathaway’s ex-husband. If not demonstrative of actual bias, the motion continued, the appearance of impropriety was sufficient for Justice Hathaway’s recusal from any rehearing of the application, particularly on that issue, and rehearing of the motion to disclose the ex-spouse’s/chief assistant prosecutor’s AGC and AG interviews.

    The disqualification motion and rehearing were filed October 16, 2009, and a stay of proceedings was sought on the latter until the disqualification is decided. The Supplemental Affidavit in support of disqualification invites the challenged justice to make “a bold and magnanimous gesture in the defense of the moral and ethical outer boundaries of the newly revised disqualification rule proposed by the Justice herself.” No response from Justice Hathaway under the new procedure has yet been filed.

    Conclusion. The newly granted power of a majority to disqualify one or more of their colleagues against their decision otherwise is simultaneously praised as the long-awaited reform needed to ensure that an actually biased justice does not unilaterally thwart disqualification, and vilified as a tool to disenfranchise the voters’ electoral choice and as the trigger of an impending constitutional crisis.

    It is unclear whether a challenged Justice could effectively thwart the a challenge by similarly challenging for recusal one or more of the remaining justices, whether an actual disqualification of a sitting Justice would be appealed by the challenged Justice himself, and to whom, and whether such challenges and appeals of challenges could be accomplished in a time frame that did not bring the cases, or worse, the classes or categories of cases, to an impractically lengthy halt.

    There is little doubt that the number of such challenges will increase, as appellate practitioners indulge the new opportunity to test progressively ingenious strategic disqualification tactics, and devise novel efforts to divide, pick, and choose between the justices in development of a special issue-by-issue judicial constituency, based upon judicial philosophy, political sympathy, and vulnerability to ever-enlarging categories of potential “appearances of impropriety.”

    In applying the new language, the court let bygones be bygones for Justice Markman in Pellegrino, but appears to be ready to actively police future political speech under the largely undefined ‘impropriety” standard. Whether the stated promulgator of the amendments, Justice Hathaway, will find an equally benign reception from her newly incensed dissenting colleagues in defining the new standard in the more complicated personal factual scenario of Aceval, or whether the majority will side step the challenge on procedural grounds or a tersely unenlightening fiat, remains to be shortly seen.

    Future rule changes with additional consequences may not be far off. Chief Justice Kelly
    stated at the November 5, 2009 meeting that the “question of when financial contributions to sitting justices constitute the appearance of bias or the probability of bias such as to require disqualification” was “an important matter that has to be addressed.” Justice Weaver has long insisted on her website that the Michigan Constitution permits the appointment of a temporary “replacement justice” where another justice is disqualified [14]. Just such a motion, to appoint a temporary Justice in the absence of the already disqualified Justice Corrigan in Aceval, is already pending, as is, consistent with the advent of “transparency” cited in support of the amendments, a motion in the same case seeking disclosure of the circumstances of her recusal to testify on behalf of the involved, accused judge.

    The widely divergent views of the justices on the content, interpretation, and application of the amendments portend difficult days ahead for a court likened by former Justice Thomas Giles Kavanagh to “seven people in a boat upon stormy seas;” wags have suggested the four horsemen of the sea, mutiny, shipwreck, piracy and maelstrom, should be figuratively considered part of the court’s future seascape. Perhaps added to the metaphor should be, like a crew’s shore-bound family anxiously gazing out to sea, that the practicing bar and public can only hope the competitive, high-stakes maneuvering in that beleaguered vessel does not cast overboard its precious cargo, their right to fair, unbiased, and final decision-making on the merits according to law.

    END NOTES

    [1] Johnson v Henry Ford Hospital, 477 Mich 1098 (2007)(“MCR 2.003. . . has never been held applicable to disqualification of Justices.”); but see Weaver, J.,concurring/dissenting opinion, “[I]n Adair v. Michigan, 474 Mich. 1027, 1043, 709 N.W.2d 567 (2006), Chief Justice Taylor and Justice Markman stated that “[p]ursuant to MCR 2.003(B)(6), we would each disqualify ourselves if our respective spouses were participating as lawyers in this case, or if any of the other requirements of this court rule were not satisfied.” Justice Young concurred fully in this legal analysis. Id. at 1053.”Id.

    [2] MCR 2.003 (A).

    [3] MCR 2.003 (B).

    [4] MCR 2.003 (C)(1)(b)(ii)

    [5] MCR 2.003 (D)(3)(b).

    [6] MCR 2.003 (D)(3)(b).

    [7] Caperton v A.T. Massey Coal Co., Inc. __US__; 129 SCt 2252;173 LEd 2d 1208 (2009).

    [8] Const 1963, art 11, section 7.

    [9] Const art 6. Section 25.

    [10] Const art 6, section 30(2).

    [11] MCR 2.003 (D) (1).

    [12] MSC No. 137111, motion for disqualification decided January 28, 2010.

    [13] MSC No. 138577, motion for disqualification and rehearing, etc. presently undecided.

    [14] See justiceweaver.com, Justice Weaver’s comments to “ADM File No. 2009-04 Proposals Regarding Procedure for Disqualification Of Supreme Court Justices, ”state:

    “Art 6, § 23 is the constitutional authority that allows, but does not require, the Supreme Court, as it has done in the past and continues to do so today, to “authorize persons who have been elected and served as judges [i.e., current and retired trial judges, Court of Appeals judges, and Supreme Court Justices who have been elected and served as judges] to perform judicial duties for limited periods or specific assignments” in the trial courts and the Court of Appeals when illness, disqualification, recusal, or other temporary occurrence or need prevents judicial duties from being performed by trial or Court of Appeals judges.”

    The foregoing article appeared in the Spring, 2010 issue of the State Bar of Michigan Litigation Section Newsletter
    and is reprinted here with the permission of the author. Copyright(c)2010 David L. Moffitt. All rights reserved.

    See a successor article by the same author updating the decisions and issues in the foregoing, to shortly appear in the State Bar of Michigan Appellate Practice Section Journal, Summer, 2010.

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