Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Michigan Supreme Court Adopts New Disqualification Rules: Is the Glass Half Empty or Full?

A new rule promulgated by the Michigan Supreme Court allows justices to disqualify each other from cases. Previously each justice decided whether he or she was unbiased and rarely gave an explanation for the decision. The new rule has produced extraordinary reaction from the bench.

Chief Justice Marilyn Kelly said the rule brings the court in line with Michigan's lower courts and puts a clear policy on paper for the first time. Conversely, Justice Maura Corrigan, who opposed the rule, has predicted a "constitutional crisis" and "permanent siege" on the state's highest court. The court, in a 4-3 vote, said lawyers can ask a justice to disqualify himself or herself based on a perceived bias. If the justice declines, the entire court can step in and act. Particularly troubling is the fact that the judges who made campaign promises how they will vote are not automatically disqualified under the rule. The new MCR 2.003(2)(b) states that the rule does not require disqualification based on campaign speech protected under
Republican Party of Minnesota v White, 536 US 765 (2002). That case states that a candidate cannot be disqualified because he or she makes a promise how she would rule. It does not state that the candidate has any right to sit on a case and it certainly doesn’t make the speech ethical. Holding the disqualification threat over a candidate’s head would have been a powerful tool to muzzle the offensive trend. We have candidates speaking to special interests groups telling them that they will be voting their way. They are every bit as biased as the judge who was disqualified in Caperton v Massey, ___ US ___, 129 S Ct 2252 (2009). Imagine being the patient seeking justice in a court where the deciding judge stood in front of the Michigan Medical Society telling the doctors they should vote for him because he/she has stood for medical malpractice reform!

In the end, I think that the answer is an appointed judiciary, but in the interim muzzling this conduct should have been required rather than treating such speech as something that should be respected under the first amendment. Hate speech is protected by the first amendment, but it does mean that is something that should be respected or encouraged. The
Republican Party decision may make the ethics rule difficult (if not impossible to enforce), but it doesn’t make the speech ethical or proper. It only makes it legal. Judges are routinely disqualified for lawful conduct.

Michigan’s elected judiciary was not a populist reform, it was a “reform” pushed by the Railroad’s (hiding behind a populist façade) to oust one of the greatest courts in U.S. history. For those students of history out there, I strongly encourage reading the late Professor Edward Wise’s article: “The Ablest State Court: The Michigan Supreme Court Before 1885, 33 Wayne L Rev 1509 (1986).
Click here to purchase the article from HeinOnline’s Law Journal Library. It is also available on both Lexis and Westlaw.

The policy was approved Nov. 5 but not announced until Wednesday night -- along with 34 pages of commentary.
Click here to read the Chicago Tribune’s summary of Michigan’s new rule. Click here, to read the new rule from the Michigan Supreme Court website.