Mich. Supreme Court adopts new recusal rules

A sharply divided Michigan Supreme Court voted 4-3 to adopt new recusal rules for justices in cases where they may have an ethical conflict of interest. The changes were prompted by a U.S. Supreme Court ruling that found a violation of rights for parties before a state supreme court when one of the justices has an obvious financial conflict of interest in the case.

In that ruling, Caperton v Massey, the chief justice of the West Virginia Supreme Court refused to recuse himself from a case even after the defendant in the case had spent millions of dollars to get him elected to the court while the case was pending. Michigan Chief Justice Marilyn Kelly, saying, “We don’t want a situation like that in Michigan,” proposed new rules that are more strict in requiring justices to recuse themselves in such cases.

Up until now, a party before the court who believed a justice had cause to be disqualified from hearing the case had to petition that judge to recuse themselves voluntarily. The challenged justice could then decide whether to honor the request but did not have to provide any reason for acceptance or refusal.

Under the new rules, a challenged justice will still make that decision but will have to provide a written opinion explaining his or her decision. If the justice refuses to recuse themselves, the challenging party can petition the full court and the other six justices will consider the matter, take a vote and publish their own written opinion determining whether the challenged justice can hear the case or not.

The three justices who opposed the new rules reacted very strongly to their passage:

But Justices Maura Corrigan and Robert Young, who cast dissenting votes on the rule change, questioned the authority of the court to disqualify a justice and the constitutionality of removing from a case a judge elected to office by the people. They also questioned what they called “vague impropriety standards” that could be considered grounds for disqualification and be used to alter the balance of the court on important cases.

“This is a huge threat to our liberties as Americans,” Corrigan said.

She wrote in her dissenting opinion that “it is always wise to be wary of any government action taken the day before a holiday or late on a Friday.”

Justice Stephen Markman wrote that the new rule opens up the potential of “gamesmanship” and “politicization” of the recusal process.

I think this is an overreaction. I would predict that the new rules will be invoked very rarely and even more rarely will a justice be required by their colleagues to recuse themselves against their will. If we can’t trust the members of the state’s highest court to exercise their authority in this regard with restraint and discernment, we’ve got far bigger problems on the court than the question of recusal.