Judicial Disqualification in Michigan – A Slippery Slope
Michigan Court Rule 2.003 [PDF] pertains to the “Disqualification of Judge.” Subsection (C) thereof sets forth the grounds. Section (C)(1)(b) is a recent addition, and it provides as follows:
The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey, US; 129 S Ct 2252; 173 Law Ed 2d 1208(2009), or (ii) has failed to adhere to the appearance of impropriety standards set forth in Canon 2 of the Michigan Code of Judicial Conduct.
This terminology of “risk” and “appearance” lends itself to a higher probability of judicial disqualification and/or recusal because now they are expressly stated in MCR 2.003, even though otherwise recognized in the past. Therefore, for disqualification there does not have to be a showing that the Judge is personally biased or prejudiced for or against a party or attorney.
Canon 2 of the Michigan Code of Judicial Conduct emphasizes that a judge should avoid impropriety and the appearance of impropriety in all activities. It states that public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. This modification to the Court Rule emphasizes that this activity or perception thereof more specifically relates to the courtroom.
Subrule (C)(1)(b) enumerates various grounds for disqualification. As indicated in the text of the rule, however, the list is not exclusive. For example, the “appearance of impropriety” has been recognized as a ground for judicial disqualification, with due process implications. See Cain v Michigan Department of Corrections, 451 Mich 470 (1996). As stated in Cain, “We acknowledge there may be situations in which the appearance of impropriety on the part of a judge or decisionmaker is so strong as to rise to the level of a due process violation.” In People v Perkins, 193 Mich App 209 (1992), the Court of Appeals held that the appearance of impropriety arising from the financial ties between the trial judge and one of the defense attorneys required the judge to disqualify himself. “[E]ven without a showing of bias or prejudice…[w]e believe that where, as here, the judge’s economic relationship with a law firm is more than a de minimis relationship, automatic disqualification is required. Moreover, we believe that in matters in which the judge has a financial interest with an attorney appearing in the matter, the judge has a duty to disclose the relationship on the record and recuse himself unless the parties ask the judge to proceed.”
In Ireland v Smith, 214 Mich App 235 (1995) the test for determining whether a trial judge should be disqualified was not just whether actual bias exists, but also whether there was such likelihood of bias or appearance of bias that judge was unable to hold balance between vindicating interests of the court and the interests of the affected party; even if a judge is personally convinced that he is impartial, disqualification is warranted if the circumstances cause doubt as to the judge’s partiality, bias or prejudice. Affirmed as modified, 451 Mich 457, 547 (1996); In re Fiftieth Dist Court Judge, 193 Mich App 209, 483 (1992) (trial judge’s financial ties with law firm representing one of the defendants in narcotics prosecution created appearance of impropriety that required judge’s disqualification without showing of actual bias or prejudice.).
The court in People v Lowenstein, 118 Mich App 475, 482 (1982), stated the test as: “not whether or not actual bias exists but also whether there was such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.”
Actual personal prejudice is shown where the judge expresses a preconceived notion of defendant’s guilt, People v Gibson, 90 Mich App 792 (1979), or some degree of personal animus, People v Lobsinger, 64 Mich App 284 (1975). Rule 2.11 of the ABA Model Code of Judicial Conduct requires disqualification “in any proceedings in which the judge’s impartiality might reasonably be questioned.” The presence of a biased judge at trial is one of the errors that “are so fundamental and pervasive that they require reversal without regard to the facts and circumstances of the particular case.” Delaware v Van Arsdall, 475 US 673; 106 SCt 1431; 89 LEd2d 674 (1986); Rose v Clark, 478 US 570; 106 SCt 3101; 92 Led2d 460 (1986). A litigant should believe that he/she can receive his/her constitutional rights to due process and a fair trial. Cain, et al. v Department of Corrections, supra; Delaware v Van Arsdall, 475 US 673 (1986); Rose v Clark, 478 US 570 (1986).
The assigned judge’s conduct and comments must not display a favoritism or antagonism that would make fair judgment impossible. Also, the appearance of impropriety on the part of the judge must not be so strong as to rise to the level of a due process violation. A showing of actual bias is not necessary to disqualify a judge if the probability of actual bias on the part of the judge is too high to be constitutionally tolerable. See Gates v Gates, 256 Mich App 420 (2003). The intent of this authority is to promote public confidence in the integrity of the judicial process and to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. A judge is required to resolve any doubts as to whether he or she should hear a case in favor of disqualification.
The prospects for disqualification appear to be enhanced if the moving party should file a complaint against the subject judge with the Judicial Tenure Commission, especially if it is still pending. The Court in Clemens v Bruce, 122 Mich App 35 (1982) stated in pertinent part as follows at 37-38:
Ordinarily, actual personal prejudice must be shown before disqualification is mandated. See, for example, Adams v Adams, 100 Mich App 1, 16; 298 NW2d 871 (1980). However, in Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975), the Court said:
A hearing before an unbiased and impartial decisionmaker is a basic requirement of due process.
The United States Supreme Court has disqualified judges and decisionmakers without a showing of actual bias in situations where experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. Among the situations identified by the court as presenting that risk are where the judge or decisionmaker
(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, factfinder or initial decisionmaker.
Here the record reveals a serious dispute between plaintiff’s attorney and the trial judge over appointment of counsel for indigent criminal defendants. The dispute led plaintiff’s attorney to file a complaint against the judge with the Judicial Tenure Commission which was still pending at the time of trial. The circumstances presented here thus fall within factors (2) and (3) of the test stated in Crampton. The circumstances suggested such a risk of actual prejudice on the part of the judge that due process required his disqualification even absent a showing of actual prejudice. See Auto Workers Flint Federal Credit Union v Kogler, 32 Mich App 257, 259; 188 NW2d 184 (1971), in which disqualification was found to be mandated in part because a grievance before the state bar filed by one of plaintiff’s attorneys against the trial judge was pending, although the Court also referred to other, unspecified conduct of the trial judge. See also People v Lowenstein, 118 Mich App 475; 325 NW2d 462 (1982), in which the Court held that an arrest warrant was invalid because not issued by a neutral and detached magistrate where the magistrate in question had been sued by defendant. Our decision is not to be construed as suggesting that the trial judge was guilty of any actual impropriety.
Accordingly, a judge’s comments and conduct may evince his/her propensity to have to step out of his/her role of an impartial judge. One cannot pre-judge the case or have an actual bias or prejudice against a party or that party’s counsel. The amendment to the Court Rule made it easier to effectuate disqualification. Is this a weapon, or a useful tool?