With Justice Elizabeth Weaver leading the charge, the Michigan Supreme Court is poised to codify new standards for how and when judges must recuse themselves. As it stands now in Michigan, when a party to a case files a motion requesting that a judge disqualify himself due to aconflict of interest, that very judge can deny the motion (refusing to recuse himself) without having to explain why. Current state practice thus takes an already subjective process, and makes it worse by stripping it of transparency.
But that may soon change. The Court is currently considering 3 proposals– open to public comment through August 1 – that would define what constitutesa conflict of interest. Naturally, the proposals vary, and one, so-called Proposal C, is better than the rest. In a letter filed today with the Michigan Supreme Court, the Brennan Centerand Justice at Stake explained why. Unlike the other proposals, Proposal C would, among other things:
- Amend the current court rule for disqualifications, which would be easier and clearer than creating a new rule with uncertain reach;
- Make the list of grounds for disqualification non-exclusive, meaning that rules guiding disqualification remain flexible and responsive to instances not specifically listed in the rule itself;
- Insert important language calling for disqualification when a judge’s “impartiality might objectively and reasonably be questioned”;
- Require a judge to publish reasons for his or her ruling on a party’s motion for disqualification; and
- Allow for a court-wide review of a judge’s denial of motion for his or her disqualification.
While Proposal C is, without question, the most desirable of all the options, there are additional reforms that could strengthen the proposal – like paying special attention to cases involving campaign contributors, enhancing disclosure by litigants and judges, empowering recusal advisory bodies, facilitating judicial education, and increasing andconsolidating uniform data collection on disqualification motions and their dispositions. The Brennan Center discussed these at greater length in the letter.
That the issue of disqualification is even being considered at all is a start. A call to take up the matter, made by Justice Weaver in 2003, went largely ignored under the successive chief justiceships of Maura Corrigan and Cliff Taylor. The Court’s apparent change of heart is inpart the happy result of the new composition of the Court following the 2008 election of Diane Hathaway.
Michigan currently has the dubious distinction of being one of only three states whose code lacks the American Bar Association’s general disqualification clause. That clause, available here,states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” The ABA standard has been incorporated into federal law and adopted by 47 states intheir codes. Michigan Supreme Court Justices have pushed for its adoption from the bench before, though never to any avail.
It is, of course, entirely possible that the Michigan Supreme Court will decline to do anything at all. The fact that the present proposals are onthe table does not mean that the Court will ultimately have to adopt any one policy. But after the U.S. Supreme Court’s ruling in Caperton v. Massey inaction is hardly an option. Writing for the majority, Justice Anthony Kennedy reiterated in Caperton anargument he had made some seven years earlier in Republican Party of Minnesota v. White – namely, that states could adopt recusal standards more rigorous than due process requires. And in the aftermath of Caperton, states have heeded the call. According to the National Center for State Courts, 17 states have taken on recusal reform in some venue or another – whether through legislation, state Supreme Court appointed commissions, or individual petitions submitted by advocates. We detail these initiatives here.
As the public learns more about the issue, acting to shore-up recusal standards, particularly given Caperton, is becoming harder to resist as a matter of policy. In February 2009, a national poll conducted by Harris Interactive found that more than 80% of the public believes judges should avoid cases involving major campaign contributors. 81% believe a disinterested judge should have the last word on recusal motions, not the judge whose objectivity is inquestion.
States looked to the U.S. Supreme Court for direction in Caperton. Now the nation’s eyes are trained on individual states. As we await the results of the three proposals in Michigan, justice hangs in the balance.