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October 30, 2006 Proper Disqualification and Remittal Procedures 1

Proper Disqualification and Remittal Procedures

following Adair v Michigan, 474 Mich 1039 (2006)

Deborah GreenSCAO Region I Administrator

Thomas ByerleyMJI Publications and Judicial

Education Manger

Paul J. FischerExecutive Director and General Counsel, JTC


Specific TopicsReview of Current LawReview of the Proper ProceduresBest Practices for Handling Motions to DisqualifyFunding Unit IssuesRelationship IssuesWitness/Party IssuesAttorney IssuesQ and A


Review of Current Law


SourcesCanons

Code of Judicial Conduct, adopted by MSC

Opinions of the MSC and Court of Appeals

State Bar Ethics Opinions“Opinions of a state bar committee on judicial ethics are merely advisory, are not binding on any court, and are merely the opinions of volunteer lawyers of a state bar committee.” Adair v Michigan, 474 Mich 1027 (2006)


Cain v Dep’t of Corrections, 451 Mich 470 (1996)

Due process requires an unbiased and impartial decision maker


Crampton v Dep’t of State, 395 Mich 347 (1975)

The United States Supreme Court has disqualified judges and decision-makers without a showing of actual bias in situations where “experience teaches that the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.”



Among the situations identified by the Court as presenting that risk are where the judge or decision-maker

(1) has a pecuniary interest in the outcome(2) has been the target of personal abuse or criticism from

the party before him;(3) is enmeshed in other matters involving petitioner; or(4) might have prejudged the case because of prior

participation as an accuser, investigator, fact finder or initial decision maker.


MCR 2.003The judge is personally biased or prejudiced for or against a partyThe judge has personal knowledge of disputed evidentiary factsThe judge has been consulted or employed as an attorney in the matterThe judge was a partner of a party, attorney for a party, or member of a law firm representing a party within the last two years


MCR 2.003Economic interest in the subject matterThird degree of relationship to party or lawyerDoesn’t say “appearance of impropriety”


Canon 3CA judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B).


Canon 3DA disqualification of a judge may be remitted as provided by MCR 2.003(D).


Adair v Michigan, 474 Mich 1027 (2006)Employment of spouses of state Supreme Court justices in non-supervisory capacities by office of state Attorney General did not give rise to “appearance of impropriety” requiring recusal of such justices pursuant to state Code of Judicial Conduct, absent any showing of actual bias or partiality, where such employment did not amount to grounds for recusal under applicable court rule, and specific rules and canons pertained to judicial disqualifications.


Adair v Michigan, 474 Mich 1027 (2006)

Assuming applicability of “appearance of impropriety” standard to motions for judicial recusal, standard applicable to assessment of appearance of impropriety was objective, with assessment to be made from perspective of reasonable observer who is informed of all surrounding facts and circumstances.


Adair v Michigan, 474 Mich 1027 (2006)

Pursuant to the federal courts' “duty to sit” doctrine, there is an obligation to remain on any case absent good grounds for recusal.


Grace v Leitman, 474 Mich 1081 (2006)"[I]t can never be the case, in our judgment, that a judge can be required to disqualify himself on the basis of hostile conduct directed toward him by the attorney or litigant, rather than on the basis of the judge's own conduct. To require recusal in these circumstances would be to incentivizehostile conduct by an attorney or litigant desirous of excluding disfavored judges from participation in their cases."


Grievance Administrator v Fieger, – Mich – (2006)

Live radio, regarding a panel of the Court of Appeals that had vacated a med-mal judgment:

“Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on you. Kiss my *ss, too.”“[Plaintiff] lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the finger he should keep is the one where he should shove it up their *sses”



Innuendo“I know the only thing that’s in their endo should be a large, you know, plunger about the size of, you know, my fist.”

And more:“three jackass Court of Appeals judges”“They say under their name, Court of Appeals Judge, so anybody that votes for them, they’ve changed their name from, you know, Adolf Hitler and Goebbels, and I think –what was Hitler’s – Eva Braun, I think was, is now Judge Markey, she’s on the Court of Appeals.



“Civility rules” are constitutional

Case was “pending” in Court of Appeals

Civility rules are not vague:“To invite the sodomization of a judge . . . [does] not come close to the margins of the ‘civility’ or courtesy’ rules.”



Not political speech“To invite the sodomization of a judge . . . Can hardly be considered an ‘interchange of ideas for the bringing about of political and social changes.’”

Reprimand (consented to)

Petition for cert is certain


Grievance Administrator v Fieger, 475 Mich 1211 (2006)

Committee to Re-Elect Justice Maura Corrigan:

We cannot lower our guard should the Fiegers of the trial bar raise and spend large amounts of money in hopes of altering the election by an 11th hour sneak attack.


Grievance Administrator v Fieger, 475 Mich 1211 (2006)

Motion to Disqualify denied“If campaign opposition constituted a basis for disqualification, there would rarely, if ever, be a full contingent of this Court hearing an appeal. Lawful campaign contributions, in support of and in opposition to a judge, have never before constituted a basis for disqualification. Respondent himself, for example, has made contributions in support of and in opposition to each of the Justices of this Court.”


People v Bero, 168 Mich App 545 (1988)

Mere filing of party's or attorney's complaintwith Judicial Tenure Commission is insufficient to require automatic disqualification of judge in party's or attorney's casesDisqualification is not required until judge is privately censured or complaint is filed by Judicial Tenure Commission itself.


In re 50th District Court Judge,193 Mich App 209 (1992)

Trial judge's financial ties with law firm representing one of the defendants in narcotics prosecution created appearance of improprietythat required judge's disqualification without showing of actual bias or prejudiceJudge had joint ownership interest in property on which main office of law firm was located, firm paid property taxes on that property, and paid mortgage for which judge was jointly liable.



Among the situations identified by the Court as presenting that risk are where the judge or decision-maker

(1) has a pecuniary interest in the outcome(2) has been the target of personal abuse or criticism from

the party before him;(3) is enmeshed in other matters involving petitioner; or(4) might have prejudged the case because of prior

participation as an accuser, investigator, fact finder or initial decision maker.


Review of the Proper Procedures


How it starts - MCR 2.003Issue can be raised by motion or bythe judge

Motion must be filed within 14 days of discovery of the grounds for DQ

And accompanied by an affidavit stating all grounds for DQ

Untimeliness can be a factor in your ruling


Grant v Deny

If granted, case gets assigned to another judge in the court

Use your normal assignment process

If none available, goes to SCAO for assignment

If denied, case goes to Chief Judge who rules de novo

If CJ is challenged judge, it goes to SCAO for assignment to a judge for de novo hearing only


SCAOAssignment Process

Regional Administrator usually makes assignment

Considers proximity, caseload, time factors and judicial availability in making the assignment



The State Court Administrator will assign by blind draw if:

Case involves a judge or regional administrator

Case is between funding unit & court

Case is otherwise sensitive or controversial



Do not suggest a judge to be assigned – that judge will be eliminated from consideration

SCAO will assign sitting judges as much as possible, although can be assigned to a former judge

May use former judge for lengthy assignments that would impact judges regular caseload

Assignment Guidelines are on the website


Who or What Moves WhereAssignment is not a change of venue

Assigned judge travels to assigned court

Unless parties stipulate in writing

Case remains with the originating court

All monies go to originating courtProbation is handled at originating court



Best Practices for Handling Motions to

Disqualify


Best Practices –Motions to Disqualify1. Unless disqualification is “automatic” –

you may wish to avoid temptation to address sua sponte:

A. Automatic DQsPersonal knowledge of facts in disputeMember of firm less than 2 years agoHave an economic interest in subject matterJudge’s close relative [spouse or within 3rd degree] is a party, lawyer, or material witness


Best Practices –Motions to Disqualify (continued)B. Remaining reason: “bias or prejudice”

i. Do by motion, with noticeii. What is “bias and prejudice”?

Judge is absolutely convinced that he/she cannot be impartialNot general ideologies, political leanings, etc.MSC says: Not when attorney or party spends millions of dollars to unseat you, or publicly calls you a “Nazi”, or publicly states that the judge should “shove something up their you-know-what”


Best Practices –Motions to Disqualify (continued)2. Best practice – place the burden of proof

on the lawyer bringing motion – don’t put burden on yourself.


Funding Unit Issues


You Make the Call!How would you rule in these situations?

Would you recuseyourself?

Would you expect your colleagues to?


Funding Unit Issues

Party is [former] Mayor[Councilman/Commissioner/other elected official]

Party is [former] Police Chief[Budget Director/HR Director/other non-elected official]


Funding Unit Issues

Party is [father/spouse/daughter] of [elected or non-elected official]

Party is Police Chief’s secretary


Funding Unit Issues

Party is the Court

Party is the Funding Unit

Civil case vs. Criminal case – anything change?

Litigation could directly affect court’s budget


Relationship Issues


MCR 2.003(B)(6)(B) A judge is disqualified when the judge cannot impartially

hear a case, including but not limited to instances in which:(6)The judge or the judge’s spouse, or a person within the third

degree of relationship to either of them, or the spouse of such person

(a) Is a party to the proceeding, or an officer, director or trustee of a party;

(b) Is acting as a lawyer in the proceeding;(c) Is known by the judge to have more than a de minimis interest

that could be substantially affected by the proceeding;(d) Is to the judge’s knowledge likely to be a material witness in

the proceeding.


Relationship IssuesFamilyWork Related

DirectIndirect

Knowledge of a personAttorneys


Family IssuesMost complex, per Dr. Phil

Least complex, per Dr. Paul


ConsanguinityThe method of computing degrees of consanguinity by the civil law is to begin at either of the persons claiming relationship, and count up to the common ancestor, and then downwards, to the other person, in the lineal course, calling it a degree for each person, both ascending and descending, and the degrees they stand from each other is the degree in which they are related. Van Cleve v Van Fossen, 73 Mich 342 (1889)



AffinityAffinity is the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other, and the degrees of affinity are computed in the same way as those of consanguinity or kindred. A husband is related, by affinity, to all the blood relatives of his wife, and the wife is related, by affinity, to all blood relatives of the husband. Bliss v Caille Bros Co, 149 Mich 601, 608 (1907)


Family Issue 1Judge’s son is a party


Family Issue 1Child is one step on the consanguinity pyramid

NO!!

Judge Mom/Dad

Son Daughter


Family Issue 2Judge’s first cousin is a party


Family Issue 2First cousin is four steps on the consanguinity pyramid

Yes, but . . .

Appearance of impropriety?Adair v Michigan, 474 Mich 1027 (2006)Objective standard

Grandparents

Parent Aunt/Uncle

Judge First Cousin


Family Issue 3Defense attorney is judge’s brother


Family Issue 3Brother is two steps on the consanguinity pyramid

NO!!

Parents

Judge Sibling


Family Issue 3Brother’s law firm?

Adair v Michigan, 474 Mich 1027 (2006)No supervisory role by relativeNo showing of bias or partiality

J-004, March 8, 1991Judge is not automatically disqualifiedJudge should disclose the relationship on the recordLaw firm should disclose whether the judge's relative has participated personally and substantially in the matterIf so, the judge is recused unless the parties ask the judge to proceed.


Family Issue 4Party is married to judge’s mother


Family Issue 4Mother is one step on the consanguinity pyramid

Mother’s husband is the same level, based on affinity

NO!!

Mom

Judge

Husband


Work-Related IssuesDirect

Your secretary

IndirectYour secretary’s babysitter


Work-Related Issue 1Fellow judge is party or witness


Work-Related Issue 1MCR 2.003(B) A judge is disqualified when the judge

cannot impartially hear a case, including but not limited to instances in which:

(1) The judge is personally biased or prejudiced for or against a party or attorney


Work-Related Issue 1If fellow judge is a party . . .

Better to recuse

If fellow judge is a material witness . . .Better to recuse

Adair, objective standard of appearance of impropriety


Work-Related Issue 2Employee of the Court is a party or witness

Court officersCourt clerksMagistratesCourt reporters/recorders


Work-Related Issue 2JI-044, November 1, 1991

A judge's personal acquaintance with an advocate or a party, without more information indicating the nature of the acquaintance which gives rise to a presumption of bias, is insufficient grounds for a judge's automatic recusal.If the judge is concerned about the appearance of bias, the judge should advise the parties and their lawyers and recuse unless asked to proceed.


Work-Related Issue 2JI-061, December 12, 1992

Absent actual bias, a judge is not disqualified from presiding in a matter in which a part-time police officer who will be called as a witness is also a probation officer with the judge's court.


Work-Related Issue 3Attorney also serves as the local city attorney and appears in that capacity before the judge


Work-Related Issue 4Judge is the landlord for a lawyer or party


Work-Related Issue 4JI-006, June 1, 1989

A relationship between a landlord/judge and a tenant/lawyer creates the appearance of impropriety if the lawyer practices before the judge.A full disclosure of the relationship must be made to all litigants, and the consent of all litigants obtained, in order to avoid a disqualification.

In re 50th District Court Judge, 193 Mich App 209 (1992)Required judge's disqualification without showing of actual bias or prejudice

Formal Complaint 55Public censure, plus 60-days suspension


Knowledge of a PersonParty is a relative of employeeParty is former employee of courtParty’s ex-wife is former court administratorParty is elected official of the funding unitParty is former mayorParty’s brother is police officerDefendant is father of council presidentOUIL defendant is husband of employee


Knowledge of a PersonThese circumstances are not specified in the grounds for disqualification in MCR 2.003

These circumstances, absent anything else, do not give rise to rise to an objective appearance of impropriety


Knowledge of a PersonVictim is related to employeeVictim is child of court employeeVictim is chief of police’s secretaryVictim is daughter of councilperson





Knowledge of a PersonParty is personally known to the judgeFormer judge is partyWitness is judge’s neighbor





Knowledge of a PersonJudge is member of victim’s organizationJudge is member of defendant’s church


Knowledge of a PersonJI-051, April 3, 1992

A judge serving on the board of directors of a nonprofit legal aid organization is required to disclose the relationship when one of the parties appearing before the judge is represented by a lawyer from the legal aid organization.

JI-066, March 26, 1992A judge is not per se prohibited from serving on the board of a bona fide civic organization which accepts sentencing referrals from the judge or whose staff members testify in matters over which the judge presides.A judge who serves on the board of an organization whose members appear as witnesses in proceedings before the judge must disclose the judge's membership on the board and recuseunless the parties ask the judge to proceed in the matter.





Witness/Party Issues


Witness versus Party

MCR 2.003 (B)(6) – Relationship Rule. Applies to parties and material witnesses.


Witness versus Party (continued)

True Life examples of DQ issues for parties:

Party has filed a JTC complaint against judgeLandlord/Tenant case: Plaintiff is court officerArraignment of court employee; deputy sheriff




Small claims case involving court employeeParty “known” by judgeFormer/current mayor, elected official

Party’s mother is involved in a lawsuit against judge




Another judge is a partyFormer judge is a partyMatter involves church attended by judgeParty’s owner threatened to kill judge


Witness versus Party (continued)True Life examples of DQ issues for witnesses:

Victim is assistant prosecutorVictim is employee of the courtVictim is related to employee of the courtWitness is acquaintance/friend of judgeWitness is neighbor of judgeWitness is court employee



Remember that “witness” means “material witness”. Difference is that witness will provide evidence of a substantial/material/relevant/non-duplicative nature.


Attorney Issues


Attorney Issues for DQMCR 2.003 has only two “automatic” disqualifications involving lawyers:

The judge was a member of the lawyer’s law firm within the past two years;A judge’s close relative (within 3rd degree) is lawyer before the judge


Attorney Issues for DQ (continued)Things which do not result in automatic DQ:

Lawyer ran against you in last electionLawyer contributed to your campaign, or the campaign of your opponentYou “can’t stand” a particular lawyer


Attorney Issues for DQ (continued)This leaves the “actual bias” standard for attorney DQ questions


Attorney Issues for DQ (continued)

True Life examples of DQ issues for attorneys:

Attorney who “regularly” practices in your courtAttorney has previously filed a JTC complaint against youAttorney is a party (divorce, L/T, etc.)Attorney represents judge in an unrelated matterAttorney is former judgeFormer city attorney is defense attorney


Attorney Issues for DQ (continued)True Life examples of DQ issues for attorneys:

Attorney is a defendant in criminal caseAttorney ran against you last time, and has promised to do so againAttorney who is currently running against youAttorney who is your campaign manager

Don’t forget the Remittal rule.


Miscellaneous Issues

Judges have previous experience with attorney/party and doubt their credibility

Party’s owner threatened to kill judge

Defendant has announced he thinks the judge is crooked


Miscellaneous Issues

Judges have same relationship with party – colleagues recuse, should you?

Judge remits and truly believes he can be unbiased – party strongly objects to the judge keeping the case

Party requests “serial” disqualifications


The Appearance of Impropriety!“I have often thought morality may perhaps consist solely in the courage of making a choice.”

Leon BlumCharles P. Curtis, Jr. Ferris Greenslet, eds.,The Practical Cogitator, 1945


Q and A

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Proper Disqualification and Remittal Procedures following ...ustools.you-niversity.com/youtools/companies/mji/materials/Proper... · Proper Disqualification and Remittal Procedures