Proposed new Mich. Supreme Court recusal standards up for review

Newly elected Chief Justice Marilyn Kelly wants the Michigan Supreme Court to set new recusal standards for members of the high court. Kelly recently issued a series of three alternative proposals for the new standards and invited comment by the public and those with an interest in the judiciary before the court adopts the final standards later in the year.

Michigan Messenger spoke with Rich Robinson, executive director of the Michigan Campaign Finance Network, about the proposed standards during a broadcast of “Declaring Independence” last week.

The proposed standards, labeled by the court as Alternatives A, B and C, go in ascending order of how strict the new rules would be and how broadly they would apply, with each subsequent alternative including the provisions of the ones before it and adding new rules to it. Alternative A applies only to the state Supreme Court, not to the lower courts, and it says that justices must recuse themselves if any of the following criteria exist:

(1) The justice is actually biased against or for a party in the proceeding.

(2) The justice has personal knowledge of disputed evidentiary facts concerning the proceeding.

(3) The justice has been consulted or employed as an attorney in the matter in controversy.

(4) The justice was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years.

(5) The justice knows that he or she, individually or as a fiduciary, or the justice’s spouse, parent, or child wherever residing, or any other member of the justice’s family residing in the justice’s household, has a more than de minimis economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.

(6) The justice or the justice’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(a) is a party to the proceeding, or an officer, director, or trustee of a party;
(b) is acting as a lawyer in the proceeding;
(c) is known by the justice to have a more than de minimis interest that could be substantially affected by the proceeding; or
(d) is to the justice’s knowledge likely to be a material witness in the proceeding.

But Alternative A leaves it up to the justice whose impartiality is being questioned to decide for themselves whether these criteria exist in the case and leaves it up to their sole discretion whether to disqualify themselves from hearing a case.

That, Robinson said, is “one of the real weaknesses of that proposal and of the current situation.”

Robinson also said that the focus on actual bias, because it is so difficult to prove in any particular case, is mistaken. The focus, he says, should be on eliminating the appearance of bias even where it cannot be definitively proven. “[Alternative A] leaves no room for the apparent bias that’s introduced by these multimillion dollar election campaigns that have become the norm in Michigan,” Robinson said. “It says when the justice is actually biased, whereas when we get into the next alternatives it leaves room for when the justice’s partiality might objectively or reasonably be questioned.”

Alternative B includes all the criteria from Alternative A, but adds three important elements to the list. First, as Robinson noted, it includes the criteria of perceived bias, decreeing that recusal is warranted if “the justice’s impartiality might objectively and reasonably be questioned” in the case. Second, it allows a request for a justice’s recusal from a case to be filed not only by the litigants in the case but by a fellow justice as well. Third, while the initial decision is still left up to the justice being challenged, it allows an appeal process. The appeal may be made to the chief justice of the court or, if the chief justice is the one being challenged, to the full court for a vote.

Robinson praised the first and third additions: “This is a great step forward from the alternative … Whether one can prove bias because the litigant happens to have spent a million dollars to elect a judge, the reasonable person test is there and it says you know what, this looks bad to our societal norms. It has to be given consideration in this. And then the whole question of whether the person who’s asked to disqualify himself has the final say on the matter, and it’s an entirely unsatisfactory situation if that is the case. So this right to appeal if the justice who is asked to disqualify refuses is an important step, I think, in having fair recusal standards.”

But Robinson expressed concern about allowing a justice to request the disqualification of a fellow justice. “It invites a question on the matter of another justice being able to ask or recommend recusal because it opens the question of whether we’re going to have retaliatory accusations of bias and requests to recuse and will they demean the whole process out of some kind of childish spite,” he said. “And as you look at the judicial temperament evident in some cases, that’s a legitimate question to ask.”

Alternative C contains most of the provisions of A and B but there are some crucial differences. The decision to recuse is not made, even initially, by the justice being challenged and the proposed standards would apply to all courts in the state rather than just the Supreme Court. If it’s an appeals court with more than one member, the chief judge decides. If the challenge is to the chief judge or to a judge on a single-member court, at the circuit or district level, then the challenge is decided by the state court administrator whether to assign another judge to the case.

The other important change in Alternative C is a requirement that the justice or administrator making the decision issue a ruling explicitly laying out the reasons for their decision, something that is not required in the first two proposals.

Robinson said that is a crucial element: “If you don’t have a published reason for why a justice refuses to disqualify himself, then how can the appeal be structured? It should be in response to what has been laid down from the justice in question, so that’s a positive element in this.”

Robinson would not endorse any of the three alternatives specifically. “My hope in all of this,” he said, “is that I hope there’s some option D, not yet published, that could be derived from the principles that best apply to this situation. Elements of C certainly would be part of it.”

But he said there are also unanswered questions that the proposed standards do not address: “There’s the whole question of what happens then if we have a justice disqualify themselves, are we going to have a provision for replacement on the court? Do you call on a retired justice, do you call up a court of appeals judge, do you go with a reduced number on a case? There are all kinds of complexities.”

Still, Robinson praised Chief Justice Kelly for making this issue a priority and for allowing input from those with a stake in the fairness of the judicial system: “I’m glad for the deliberate process in addressing this thing so we can hope we get it right.” And it is vitally important, he said, to ensure that the process is impartial and that everyone with business before the court is treated equally.

“It’s a different matter to have spent that kind of money electing a judge,” Robinson said. “It’s very different from the other two branches of government that actually represent interest groups. Judges aren’t supposed to represent interest groups, they’re supposed to represent the law and the constitution and that’s it.”

A copy of the proposed recusal rules can be viewed on the court’s website. The comment period extends until Aug. 1 but no date for a public hearing has been set so far. You can read analyses by other interested parties on the court’s website.