Order Michigan Supreme Court
Lansing, Michigan
June 4, 2010 Marilyn Kelly,
Chief Justice
138577(109) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman
Plaintiff-Appellee, Diane M. Hathaway,
Justices
v SC: 138577
COA: 279017
Wayne CC: 05-003228-01
ALEXANDER ACEVAL,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for full-Court consideration of the motion for
disqualification of Justice Hathaway is considered. Upon full-Court consideration, we
DENY the motion to disqualify Justice Hathaway because the reasons she gave in
denying the defendant’s motion to disqualify her are sufficient.
WEAVER, J. (concurring).
I join in and concur fully with the order denying defendant’s motion to disqualify
Justice HATHAWAY.
I write separately to note that Justice YOUNG claims that this Court’s
disqualification rule, MCR 2.003, has “serious constitutional flaws” and, therefore, he
refuses to abide by it and refuses to participate.
Justice YOUNG also expressed his position on the disqualification rule in
Pellegrino v Ampco, ___Mich___ (2010), where he expressly stated: “As I have
previously stated, MCR 2.003 as amended is unconstitutional.”1 I make no criticism or
objection to his position to not participate because he believes the rule is
“unconstitutional.”
1
In his dissent to the order amending MCR 2.003, Justice YOUNG stated: “I respectfully
dissent from the new majority’s enactment of this unconstitutional rule of
disqualification.
2
However, Justice YOUNG’s approach as to the disqualification rule is quite
inconsistent with his condemnation of my position that the “Gag Order,” AO 2006-8,2 is
unconstitutional; is in conflict with and in violation of Canon 3A(6) of the Code of
Judicial Conduct; and is an effort to establish secrecy (i.e., a “secret club” rule) to keep
me from performing my duty to the people to inform them of what I believe they need to
know—no more, no less—about how, what, when and where the Court performs the
people’s judicial business.3
I explained in my dissent to the “Gag Order,” AO 2006-8, on December 6, 2006
that the order was unconstitutional “because it unconstitutionally restricts a justice’s
ability to perform his duty to the public by barring a justice from ‘giv[ing] in writing’ his
‘reasons for each decision’ and ‘the reasons for his dissent.’”4 The “Gag Order” is not
only unconstitutional,5 but it is in conflict with and in violation of Canon 3A(6) Code of
Judicial Conduct.6
2
AO 2006-8 states:
All correspondence, memoranda and discussions regarding cases or
controversies are confidential. This obligation to honor confidentiality does
not expire when a case is decided. The only exception to this obligation is
that a Justice may disclose any unethical, improper or criminal conduct to
the JTC or proper authority.
3
The “Gag Order” was adopted on an emergency basis, without notice to the public and
to some justices by a 4-3 vote, over three (3) years ago on December 6, 2006. It was only
recently, at the May 12, 2010 public administrative conference, that a majority of the
Supreme Court effectively “retained” the “Gag Order” to make it retroactively effective
to January 17, 2007.
4
AO 2006-8, WEAVER J., (dissenting) (quoting Const 1963, art 6, § 6).
5
Article 6, Section 6 of the Michigan Constitution states:
§ 6 Decisions and dissents; writing, contents.
Sec. 6. Decisions of the supreme court, including all decisions on
prerogative writs, shall be in writing and shall contain a concise statement
of the facts and reasons for each decision and reasons for each denial of
leave to appeal. When a judge dissents in whole or in part he shall give in
writing the reasons for his dissent.
6
Canon 3A(6) of the Michigan Code of Judicial Conduct states:
3
I reiterated my position from my December 6, 2006 dissent to the “Gag Order” at
the May 12, 2010 public administrative conference. (To view the video of the May 12,
2010 Administrative Conference, see my personally-funded website:
www.justiceweaver.com.) During that conference, Justice YOUNG acknowledged that he
referred me to the Judicial Tenure Commission and judged me as “unethical” for refusing
to abide by the “Gag Order,” an order that I find unconstitutional.
Justice YOUNG took these extreme measures even though he himself refuses to
abide by the disqualification rule adopted by this Court that he alleges is unconstitutional.
MARKMAN, J. (concurring).
Defendant, in my judgment, has offered no evidence suggesting that Justice
HATHAWAY is biased against defendant or his attorney, or that she cannot decide
defendant’s case fairly. At the same time, I respectfully believe that Justice
HATHAWAY’s response to defendant’s motion evidences the confusion that the majority
has now introduced into this Court’s disqualification process by its new “appearance of
impropriety” standard. In short, it is hard to understand the relevance under this standard
of Justice HATHAWAY’s various assertions: (a) that she is “unaware” of certain facts; (b)
that her ex-husband’s role in the prosecutor’s office “has no bearing whatsoever on my
decision in this case;” or (c) that she does not “harbor any bias or prejudice for or against
her former husband.” While I do not doubt the truth of any of these assertions, and while
each is highly relevant in ascertaining that Justice HATHAWAY is not “actually biased”—
which historically has defined the exclusive disqualification standard of this Court—it is
unclear what the legal significance is of her personal knowledge and attitudes in
assessing the “objective perceptions” that can be discerned from her circumstances and
relationships. I continue to be concerned that the vague and formless “appearance of
impropriety” standard is susceptible to arbitrary and inconsistent application. I also
continue to be concerned, for the reasons set forth in my statement of April 22, about the
specific procedures now being followed by this Court in deciding disqualification
motions. However, notwithstanding these concerns, I believe there is no actual bias on
the part of Justice HATHAWAY, and that defendant has not satisfied what I view as his
threshold obligation to demonstrate even an appearance of impropriety. Although raising
legitimate concerns as to the meaning of the “appearance of impropriety” standard,
(6) A judge should abstain from public comment about a pending or
impending proceeding in any court, and should require a similar abstention
on the part of court personnel subject to the judge's direction and control.
This subsection does not prohibit a judge from making public statements in
the course of official duties or from explaining for public information the
procedures of the court or the judge's holdings or actions.
4
defendant’s motion is scattershot and undisciplined in its assertions and has imposed an
almost impossible obligation upon Justice HATHAWAY to respond any more thoroughly
than she does.
CORRIGAN, J., states as follows:
I am not participating because I may be a witness in a related case.
YOUNG, J., not participating.
I do not participate in the order or the Court’s decision-making under the new rule
for the reasons stated in my November 25, 2009 dissent from the rule’s promulgation7
and in my March 31, 2010 statement of non-participation in a similar motion in
Pellegrino v Ampco Systems Parking.8 I believe that rule to have serious constitutional
flaws.
7
See 485 Mich civ, cxxxii (2009) (YOUNG, J., dissenting).
8
___ Mich ___ (March 31, 2010 order in Docket No. 137111) (YOUNG, J., not
participating).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 4, 2010 _________________________________________
d0601 Clerk