Written by attorney John J. Schrot Jr.

Judicial Disqualification In Michigan

Michigan Court Rule 2.003 pertains to the "Disqualification of Judge." Subsection (C) thereof sets forth the grounds. Section (C)(1) 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. 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 the 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. 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). 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 Ardsall, 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 of 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. See Clemens v Bruce, 122 Mich App 35, 37-38 (1982). 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?

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