Another recusal controversy on state high court

In the wake of the Supreme Court’s recent ruling that very large campaign contributions can establish a due process right to have a judge recuse themselves in a case, newly elected Michigan Supreme Court Justice Diane Hathaway is being criticized for not recusing herself in a case involving the insurance industry. The controversy also comes right in the middle of the process in which the state high court is considering new rules on judge recusal.

A state Supreme Court justice’s decision not to recuse herself from a case contradicts the spirit of a recent U.S. Supreme Court ruling, critics say.

Three Republican justices on the Michigan Supreme Court have criticized their new Democratic colleague, Justice Diane Hathaway, for ruling in a case that dealt with the insurance industry. Hathaway’s husband is an auto insurance attorney…

When the case was reviewed again, the claims association argued Hathaway should not rule on it because her husband could benefit financially. But Hathaway denied having any conflict of interest, saying the association’s stance “strains reasoned logic.”

She argued justices should not have to step aside themselves just because their spouse practices in an area of law affected by a case.

Hathaway is right here. The Supreme Court’s ruling in Caperton does not go as far as to suggest that a judge must recuse themselves any time a spouse has even a distant, tangential relationship to a whole class of cases in an area of law they practice. The ruling deals with direct contributions to a judge’s election campaign and only with very large donations, ones large enough to swing the election, at that.

Most states have rules requiring judges to recuse themselves in cases in which a family member or spouse has a reasonably direct involvement — if they or the law firm they work for had worked on that particular case or for that particular client, for example, or if they had a financial interest in a company that is a party to the case. Michigan will likely have such a rule after the new recusal standards are approved.

But it’s simply unworkable and unreasonable to suggest that a judge has to recuse themselves from an entire class of cases because their spouse or another family member practices law in that field even if they had no involvement in the particular case.