State high court faces first test of new recusal rules

In the first test of new recusal rules put in place by the Michigan Supreme Court, the four more liberal and moderate justices denied a request by Geoffrey Feiger to force the court’s three most conservative to disqualify themselves in a case where he was representing a client because of his vitriolic battles in the past with those justices. The Detroit Free Press reports:

The three justices targeted by Fieger – Maura Corrigan, Stephen Markman and Robert Young Jr. – did not participate in the decision. But the court’s other justices – Chief Justice Marilyn Kelly and Justices Michael Cavanagh, Diane Hathaway and Elizabeth Weaver – who approved the new procedure over the objection of their colleagues late last year, all said the evidence of bias alleged by Fieger was not substantial enough to warrant removal.

Fieger, a virulent critic of conservatives on the court over the last decade, had sought the removal of the three justices because of what he said was a record of hostility on their part toward him and his clients.

Chief Justice Kelly, in her comments on the request to remove Markman, noted that negative comments attributed to the justice about Fieger had been made ten years ago, and that Markman’s “voting pattern over the last decade does not reflect bias against Mr. Fieger or the appearance of bias.”

Late last year, the court had issued no rules for recusals that allowed someone appearing before the court to challenge a justice’s decision not to disqualify themselves from a case where they may have a bias against one of the parties or a vested interest in the outcome. Prior to that, it was up to each individual justice to decide whether to recuse themselves. Under the new rules, their decision may be appealed to the rest of the court.

Ironically, the three conservative justices who were asked to recuse themselves in this case were the same justices who were opposed to the new rules, arguing that the new process may lead to justices forcing other justices to recuse without good reason. It appears those fears were exaggerated.