Gavel Grab

Weeks after Michigan’s Supreme Court  adopted a new disqualification rule for judges by a 4-3 vote,  the justices’ personal, and in some instances barbed, disagreement has erupted in public.

The rules adopted late Thanksgiving eve would let other Supreme Court justices disqualify a fellow justice from hearing a case, in the event of an apparent bias or conflict of interest, according to an article in the Detroit News, supplanting a practice whereby only the justice in question decides whether to step aside.

Michigan’s court adopted new rules after the U.S. Supreme Court issued a landmark decision in Caperton v. Massey. In June, the  high court required a West Virginia Supreme Court justice to recuse himself from a case involving a coal company executive who had spent $3 million to help the justice win election.

On a Detroit talk radio program Monday, Michigan Chief Justice Marilyn Jean Kelly said, “We don’t want a situation like that in Michigan,” according to the Detroit News. “The constitutional rights of judges don’t overbalance the right of the people to get a fair trial.”

But Justice Maura Corrigan has predicted a “constitutional crisis” and “permanent siege” on the state Supreme Court after opposing the rule, the Associated Press reported, and Justice Robert Young Jr. has contended the rule would repress free speech. “The majority has created a 21st Century Star Chamber,” wrote Justice Young, who voted in the minority.

The dissenters, in their portion of 34 pages of commentary issued with the new rules, raised questions of constitutionality in the hypothetical removal from a case of a justice elected by Michigan’s voters. They also lashed out at “vague impropriety standards” and decried the potential for “gamesmanship” and “politicization” of recusal. Justice Corrigan lamented, “This is a huge threat to our liberties as Americans.”

On the sharply divided court, the Republican Party backed Justices Corrigan, Young, and Stephen Markman in their elections. The Democratic Party nominated Justices Kelly, Michael Cavanagh and Diane Hathaway. Justice Elizabeth Weaver, a Republican, is seen as a moderate swing vote.

You can read the new rule and commentaries by clicking here. Following are some excerpts of the remarkable exchange of views in the justices’ commentaries:

Justice Corrigan: “For the first time in our state’s history, duly elected justices may be deprived by their co-equal peers of their constitutionally protected interested in hearing cases. Starting today, those contesting traffic tickets will enjoy greater constitutional protections than justices of this Court.”

“The current philosophical and personal divisions in this Court are no more than a mild case of acne compared to the cancerous vitriol sure to spew from justices’ pens.”

“It is always wise to be wary of any government action taken the day before a holiday or late on a Friday. Such actions are designed to travel under the radar screen. So it is with this 4-3 order.”

Justice Young: “In eliminating all due process protections, compromising and chilling protected First Amendment rights, and conducting secret appeals that might lead to the removal of an elected justice from a case against his will, the majority has created a 21st Century Star Chamber with its new disqualification rule.”

Chief Justice Kelly: “With respect to the constitutional arguments posed by Justices Corrigan and Young, it should be noted that these arguments were made only at the eleventh hour. The parts of the rule that they attack have been actively before the Court for more than a year. If any serious treatment of them was intended, it would seem it would have been put forth well before the rule was voted on.”

“No factual basis exists on which to ground the insinuation that those who voted for this rule will use it to remove a justice from a case for improper reasons.”

“Moreover, it is a gross perversion of law for Justice Corrigan to allege that, ‘In one administrative order [the recusal rule], the majority takes away the right of every citizen of Michigan to have his or her vote count.’ The accurate statement is, with this rule, the Court permits a justice’s recusal where that justice is unable to render an unbiased decision and unable or unwilling to acknowledge that fact. The justice system and this Court can only be stronger for it.”

Justice Weaver: “This newly amended rule is a positive, historical step forward toward achieving more transparency and fairness in the Michigan Supreme Court.”

To learn more about the Caperton case, click here for Justice at Stake’s resource page.  You may also click here for earlier Gavel Grab posts about Michigan’s high court and recusal. Justice Corrigan took aim at Justice at Stake and Brennan Center for Justice, a partner group, in her commentary, saying they are among groups sponsored by liberal philanthropist George Soros and they “enthusiastically lauded the efforts of the majority” on the Michigan Supreme Court.