0 r d e I' Michigan Supreme Court
Lansing, Michigan
August 28, 2008 clifford w rayi@r,
Cluefjustice
137136 & (66)(67) léllii€h;@lt:~l§v&:;f\nagh
2a e ' . ’eaver
Marilyn Kelly
Maura D. Corrigan
CITIZENS PRoTECTING MICHIGAN’S §§§§§f;: §4‘;:‘;§;§§
CONSTITUTION, LOWELL R. ULRICH, justices
MICHAEL BISHOP, ALAN L. CROPSEY,
VIRGIL SMITH, JR., and MIKE BRYANTON,
Plaintiffs~Appellees,
v SC: 137136
COA: 286734
SECRETARY ()F STATE and
BOARD OF STATE CANVASSERS,
Defendants-Appellees,
and
REFORM MICHIGAN GOVERNMENT
NOW! ,
Intervening
Defendant~Appellant.
/
On order of the Court, the motion for immediate consideration is GRANTED.
The application for leave to appeal the August 13, 2008 order and the August 20, 2008
judgment of the Court of Appeals is considered. We direct that oral argument be heard
on the application on Wednesday, September 3, 2008 at 9:30 a.m. MCR 7.302((})(1).
The motion for recusal is addressed in the joint statement of Justice Young and justice
l\/larkman set forth belovv.
CAVANAGH, J., states as follows:
Preliminarily, I note that under MCR 2.003(A) a judge may, sua sponte, raise
issues regarding his qualification to hear a case. Taking that opportunity, l note that my
participation in this case would be prohibited under MCR 2.003(]3)(5) because I have a
"more than de minimis interest" in its outcome. However, l will participate because the
rule of necessity applies to this unique case, and that rule provides an exception to the
disqualification grounds based on due-process concerns and encompassed in MCR 2.003.
See United Sz‘ates v Will, 449 US 200 (1980).
Secondarily, l do not opine on the disqualification or qualification of any other
justice. This is because this Court’s traditional disqualification procedure leaves such a
determination solely to the challenged justice. l continue to find this procedure wanting
on due-process grounds, and l have offered an alternative to the unworkable status quo.l
This case is yet another example showing the need to revise our current procedure,
whether it be the adoption of my proposal in Adair or some other proposal. Nonetheless,
bound by our current procedure, l remain mute on the propriety of my fellow justices’
participation in this case.
WEAVER, J., states as follows:
Even though l have "more than de minimis interest"z in the outcome of this case, l
decline to recuse myself because the common-law rule of necessity doctrine applies in
this unique case.
All l\/lichigan judges, active and retired, who under Const 1963, art 6, § 23, are
normally eligible for assignment to cases in which a disqualification issue arises, would
also be disqualified in this unique case because the outcome of the case affects their
"more than de minimis interest[s]" as well. Under these unique circumstances, the
common law-rule of necessity requires that l sit on the case because of the duty to
provide a forum in which the case may be heard. Um`ted States v Wz`ll, 449 US 200
(1980).
Statement by KELLY, .l., to follow.
YOUNG and MARKMAN, JJ., state as follows:
After having carefully considered the Reform l\/lichigan Government Now!
(Rl\/IGN) motion to disqualify us, we deny this motion and conclude that we are required
to participate for the following reasons:
(l) lt is claimed that each of us has a disqualifying interest. Under ordinary
circumstances, we would certainly not participate in this case because we do have a direct
and disqualifying interest in its outcome. lf the proposed initiative is adopted this year,
our terms of office will be prematurely ended on December 20 of this year. Such an
interest squarely falls within MCR 2.003(B)(5), which provides in part that a judge is
disqualified when he or she "has an economic interest in the subject matter in controversy
1 Aa'az`r v Mz`chigan, 474 l\/lich 1027, 1043-1044 (2006) (statement by Cavanagh, .l.).
2 MCR 2.003(13)(5).
. . . or has any other more than de minimis interest that could be substantially affected by
the proceediiigs."3
(2) Rl\/IGN has not asserted, nor do we believe there is any basis for a claim, that
we harbor any "actual bias" for or against any party. Cain v Dep ’t of Corrections, 451
Mich 470 (1996). ludges in l\/lichigan are granted "every presumption of fairness and
integrity, and heavy indeed is the burden assumed in this Court by the litigant who would
impeach the presumption so amply justified through the years." Mahlen Lancl Corp v
Kurtz, 355 l\/lich 340, 351 (1959).
(3) Although the motion to disqualify is directed only at us, the proposed initiative
adversely affects the financial interests of all judges in this state because, among other
things, it would reduce the salary of every judge by 15 percent and decrease his or her
retirement benefits. Consequently, each of our colleagues on this Court has an
independent ethical obligation to determine whether he or she can participate. See Code
of Judicial Conduct, Canon S(C); MCR 2.003(A).
Thus, the dispositive question in this case is not merely the propriety of our own
participation, but whether any justice of this Court can participate. For if they are all also
precluded from participation by MCR 2.003, there would be no quorum of this Court able
to decide this matter. Under such circumstances, pursuant to the "Rule of Necessity,"
every justice would have a legal obligation to participate in order that judicial review is
not precluded altogether.4
(4) The "Rule of Necessity" is the ancient common-law principle that
"although a judge had better not, if it can be avoided, take part in the
decision of a case in which he has any personal interest, yet he not only may
but must do so if the case cannot be heard otherwise." [Unitea' States v
3 Although a justice of this Court is not bound by the procedural standards set forth in
l\/ICR 2.003, Fz`eger v Cox, 480 l\/lich 874, 875 (2007), the substantive standards in this
provision are applicable. See Aa’az'r v Michz`gan, 474 l\/lich 1027, 1032-1038 (2006)
(statement by Taylor, C.J., and l\/larkman, .l.). See ia'. at l05l, 1053 (concurrence of
Corrigan and Young, JJ.).
4 lf a quorum of the l\/lichigan Supreme Court cannot be formed to consider a matter, it
has no authority to act. See .]agger v Coon, 5 l\/lich 31 (1858) (there is no authority for
the Supreme Court to render judgment when there is no quorum). See also l\/lCL
600.211(3) (a majority of justices shall constitute a quorum for transacting business).
Wz`ll, 449 US 200, 213 (l980), quoting F Pollack, A First Book of
Jui~ispi~u