Order Michigan Supreme Court
Lansing, Michigan
August 1, 2008 Clifford W. Taylor,
Chief Justice
136835 & (23) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 136835
COA: 285794
Wayne CC: 08-111273-AS
36th DC: 08-58160
KWAME KILPATRICK and
CHRISTINE BEATTY,
Defendants-Appellees.
_________________________________________/
On order of the Court, the motion for immediate consideration is GRANTED.
The application for leave to appeal the July 2, 2008 order of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded that the question presented
should be reviewed by this Court.
KELLY, J., concurs and states as follows:
I concur in the decision to deny leave to appeal because the lower court decisions
are consistent with MCR 2.003(B), the court rule regarding judicial disqualification. But
I write to voice my concern that, in its current form, the court rule is inadequate to assure
that only unbiased judges hear cases.
MCR 2.003(B)(1) requires disqualification if “[t]he judge is personally biased or
prejudiced for or against a party or attorney.”1 This Court has interpreted this language to
1
MCR 2.003(B) provides other instances where disqualification is required. It is clear
that none of them requires disqualification of the entire 36th District Court bench in this
case.
In addition, “where the requirement of showing actual bias or prejudice under
MCR 2.003(B)(1) has not been met, or where the court rule is otherwise inapplicable,
parties have pursued disqualification on the basis of the due process impartiality
requirement.” Cain v Dep’t of Corrections, 451 Mich 470, 497 (1996). No due process
violation has been alleged in this case.
2
require the party challenging a judge to show actual bias.2 I question whether imposing
such a heavy burden is appropriate, because clearly there are cases in which a party
cannot show actual bias, yet judicial disqualification should be required.
For example, in Special Wayne Prosecutor v Recorder’s Court Judges,3 the
underlying matter was the criminal prosecution of a Recorder’s Court judge. The judge
had been charged by a citizen’s grand jury. It appears that all the judges of the
Recorder’s Court were subjects of the grand jury investigation. On the prosecutor’s
motion, this Court ordered the recusal of the entire Recorder’s Court bench.
It appears that this was a wise decision. If a sitting Recorder’s Court judge had
dismissed the charges against the indicted judge, the public reasonably could have seen it
as an act of “self-protection.” It could have been viewed as an attempt by the sitting
judge to interfere with the criminal investigation into his or her own behavior.
But I question whether MCR 2.003(B) would permit us to order the recusal of an
entire bench under the same circumstances today. The court rule did not exist when
Special Wayne Prosecutor was decided.4 No other Recorder’s Court judges had been
indicted when the motion came before this Court to recuse the entire bench. Nor was
there any proof that other judges would be indicted. There was only speculation. Thus,
there was no actual bias, only the appearance of bias. I think that the Court should amend
MCR 2.003(B) to ensure that, if a case like Special Wayne Prosecutor were to arise
again, it would be proper for us to disqualify the entire bench.
Amending the court rule to include an “appearance of bias” standard has support
in the law beyond our jurisdiction. Federal law requires a federal judge to disqualify him
or herself “in any proceeding in which his impartiality might reasonably be questioned.”5
2
Id. at 495.
3
Special Wayne Prosecutor v Recorder’s Court Judges, 409 Mich 1119 (1980).
4
The court rule became effective March 1, 1985. Special Wayne Prosecutor was decided
in 1980.
5
28 USC 455.
3
A number of states provide similar standards for disqualification.6 And members
of this Court have voiced approval for a similar standard in the past.7
Unlike in the Special Wayne Prosecutor case, there is in this matter no suggestion
of wrongdoing on the part of any of the judges of the 36th District Court. Moreover, I am
not suggesting that I would vote to recuse the entire bench, even if the court rule clearly
allowed it upon an adequate showing of the appearance of bias. But, as the rule now
stands, the appearance of bias, however strong, will not be so much as considered by this
Court. This situation must be remedied.
CAVANAGH, J., joins the statement of KELLY, J.
WEAVER, J., would grant immediate consideration and reverse the Court of
Appeals and remand this case to the Court of Appeals for expedited consideration as on
leave granted.
6
See, e.g., Jefferson-El v State, 330 Md 99 (1993) for application of an “appearance of
impartiality” standard.
7
People v Adair, 474 Mich 1027, 1043 (2006) (statement of Cavanagh, J.); Id. at 1046
(statement of Weaver, J.); Id. at 1051 (statement of Kelly, J.).
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.
August 1, 2008 _________________________________________
p0729 Clerk