Order Michigan Supreme Court
Lansing, Michigan
March 23, 2007 Clifford W. Taylor,
Chief Justice
130862-63 & (142)(145) Michael F. Cavanagh
Elizabeth A. Weaver
TRACY NEAL, and All Others Similarly Situated, Marilyn Kelly
Plaintiffs-Appellees, Maura D. Corrigan
Cross-Appellants, Robert P. Young, Jr.
v SC: 130862 Stephen J. Markman,
Justices
COA: 253543
Washtenaw CC: 96-006986-CZ
DEPARTMENT OF CORRECTIONS, DIRECTOR
WILLIAM OVERTON, KENNETH McGINNIS,
SALLY LANGLEY, JOAN YUKINS, CLARICE
STOVALL, CAROL HOWES, ROBERT SALIS,
CORNELL HOWARD, NANCY ZANG, JOHN
ANDREWS, JAN BALDWIN, WES BONNEY,
DAVID CRUIKSHANK, JOSEPH DURIGON,
WILLIAM ELLISON, CHRISTOPHER
GALLAGHER, DAVID HABITZ, EDWARD
HOOK, JACK HUTCHINS, DENNIS IFORD,
DERLE JONES, ART LANCASTER, THOMAS
PORTMAN, ERIN RICHARDSON, RODERICK
ROBEY, ANTHONY SIMMONS, MARTIN TATE,
CHARLES WILLIAMS, and LYNN WILLIAMS,
Defendants-Appellants,
Cross-Appellees,
and
FRED WELCH,
Defendant.
NICOLE ANDERSON, and All Others Similarly
Situated,
Plaintiffs-Appellees,
Cross-Appellants,
v SC: 130863
COA: 256506
Ct of Claims: 03-000162-MZ
DEPARTMENT OF CORRECTIONS,
DEPARTMENT OF CORRECTIONS DIRECTOR
PATRICIA CARUSO, WILLIAM OVERTON, and
KENNETH McGINNIS,
Defendants-Appellants.
_________________________________________/
2
On order of the Court, the motion for miscellaneous relief is GRANTED. The
application for leave to appeal February 23, 2006 judgment of the Court of Appeals and
the application for leave to appeal as cross-appellants are considered, and they are
DENIED, because we are not persuaded that the questions presented should be reviewed
by this Court.
WEAVER, J., concurs and states as follows:
I concur in the order denying leave to appeal. I write separately to note that Chief
Justice Taylor has disqualified himself from this case but has supplied no reasons for his
decision not to participate.
Although I specifically requested Chief Justice Taylor’s reasons for not
participating in this case at the October 25, 2006, conference, he refused to provide them
in writing or verbally.
My request that Chief Justice Taylor give reasons on the record for his
nonparticipation is not trivial. Nor is it motivated by resentment or personal ill will. A
justice has a duty to supply the parties, the public, and thereby future litigants, with his or
her reasons for nonparticipation.
Where, as here, a justice decides on his own motion not to participate in a case, the
justice should be accountable to the parties and the public for his decision. Chief Justice
Taylor still has not given his reason for not participating in this case. While his reasons
likely support his decision to not participate, his decisions need to be in writing, on the
record, and available to the parties, the public, and thereby future litigants.1
1
For a detailed discussion of why it is necessary for a justice recusing himself/herself
from a case to provide written reasons for his/her decision, see my statement in People v
Parsons, unpublished order of the Supreme Court, entered March 6, 2007 ( Docket No.
132975), provided below:
WEAVER, J., concurs and states as follows:
I concur with the order to stay trial court proceedings in this case and
write separately to state again that a justice has a duty to supply the public,
and thereby future litigants, with his or her reasons for nonparticipation. As
I wrote almost two (2) years ago (in 2005) in Scalise v Boy Scouts of
America, 473 Mich 853, 854 (2005) (Weaver, J., dissenting):
“Const 1963, art 6, § 6, which states that ‘Decisions of the supreme
court . . . shall be in writing and shall contain a concise statement of the
facts and reasons for each decision . . .’ requires that justices give written
reasons for each decision.[1] There is no more fundamental purpose for the
3
requirement that the decisions of the Court be in writing than for the
decisions to be accessible to the citizens of the state. Because a justice’s
decision to not participate in a case can, itself, change the outcome of a
case, the decision is a matter of public significance and public access and
understanding regarding a justice’s participation or nonparticipation is vital
to the public’s ability to assess the performance of the Court and the
performance of the Court's individual justices. Thus, the highest and best
reading of art 6, § 6 requires that a justice’s self-initiated decision not to
participate, or a challenged justice’s decision to participate or not
participate, should be in writing and accessible to the public.”
As I stated in my December 21, 2006, dissent to the order denying
the motion for stay in Grievance Administrator v Fieger, 477 Mich 1228
(2006), I first raised the issue of justice recusal almost four (4) years ago
when, in In re JK, 468 Mich 202 (2003) (a termination of parental rights
and reversal of adoption case, not involving attorney Geoffrey Fieger), I
had reason to examine the rules governing my own participation in that
case:
“During the consideration of In re JK, I was informed that unwritten
‘traditions’ governed the decision and that, MCR 2.003 the court rule
concerning disqualification of all other Michigan judges, did not apply to
justices of the Michigan Supreme Court. I was further informed that it was
a ‘tradition’ of the Court that the decision whether a justice would
disqualify himself or herself was left to the individual justice and that no
reasons for the decision whether to participate or not participate in a case
were to be given.
“I concluded that these unwritten traditions and the unfettered
discretion violate Michigan’s Constitution, which requires justices to give
written reasons for each decision, including a decision to participate in or
be disqualified from a case.[2]
“Because the Court’s traditions were clearly inadequate, in In re JK,
supra, I followed the remittal of disqualification procedure provided by
MCR 2.003(D). In light of my understanding of the requirements of Const
1963, art 6, § 6, I also provided an explanation in writing of my decision
not to participate and asked that the Court open an administrative file to
explore the rules that should govern justice disqualification decisions.[3]
[Fieger, supra at 1240.]”
Thus, any assertion that my position on justice recusals is new, or began
with attorney Fieger’s motion to disqualify “the majority of four” (then
Chief Justice Corrigan and Justices Taylor, Young, and Markman) is
incorrect.
4
It is important to note that attorney Fieger initially moved to
disqualify me, as well as “the majority of four.” Then, when I denied the
motion with written reasons for my decision not to recuse myself, attorney
Fieger made no further disqualification motions against me, although
attorney Fieger has continued to make disqualification motions against “the
majority of four.” See Gilbert v DaimlerChrysler Corp, 469 Mich 883, 889
(2003) (Weaver, J., participating in part and voting to grant reconsideration
in part).
It is also untrue that my position on justice recusals has only been
directed toward Chief Justice Taylor and Justices Corrigan, Young, and
Markman. I have, in fact, raised the issue of the importance of providing
the reasons for nonparticipation to Justice Cavanagh, most recently in
White v Hahn, ___ Mich ___ (2007) (Docket No. 132191), a case in which
Justice Cavanagh’s daughter represents one of the parties.4
In Hahn, supra, I noted that Justice Cavanagh had not included his
reason for recusal, but had informed me he would do so in future cases.
Further, Justice Kelly has also indicated to me that in the future, she will
request that her reasons for not participating be included with her decisions
on the orders. Thus, obviously, contrary to assertions of a concurring
justice, I have taken up my position on justice recusals with Justices
Cavanagh and Kelly. As noted above, I have publicly raised this issue
since 2003 by my statement in In re JK, supra.
At present there is no sufficient system in place in this Court for
providing to justices adequate notice of justice recusals. Given the current
“helter-skelter” approach to handling justice recusal decisions, it is
unreasonable to expect that any justice would be able to identify all justice
recusals. For instance, it is when a case appears on a conference agenda, or
sometimes, but not always, on commissioner reports, that a justice has a
reasonable opportunity to learn about a fellow justice’s recusal from a case
and to request that nonparticipating justice to provide written reasons for
not participating.5
Further, other assertions by concurring justices are simply incorrect
and untrue. For instance: my reliance on art 6, § 6 of the Michigan
Constitution is not newfound or incorrect as evidenced by this very order,
which is issued as a “decision of the Supreme Court,” not just from one
justice. Further, I have no proposal or “desire to abolish our elective
system for justices and judges.”6
A justice’s decision to participate or not participate (recuse himself
or herself) in a case implicates a bedrock principle of our judicial system—
the impartiality of the judiciary. Without a record of a justice’s reasons to
5
not participate in a case, how can future litigants be guaranteed that the
same reasons are not present in their cases? Moreover, how can the people
of Michigan be sure that a justice is not simply refusing to work on a case
to avoid some controversy that the case might involve—for example, a
controversy that might call into question his or her impartiality on an issue
or make reelection more difficult?
The impartiality of the judiciary preserves the ethics of judicial
administration, protects decision-making, and ensures the public’s, and
thereby future litigants’, trust and confidence in the judiciary. Thus,
preserving the impartiality of the Court is “real work of the Court.”
What are needed are clear, fair, enforceable, written, and published
rules concerning the participation, nonparticipation, or disqualification of
justices. Such rules would enhance the accountability of justices to the
public. They would provide a way for the public to have some knowledge
about how justices conduct the public’s business so that the public could
accurately assess the justices’ performance of their duties.
Further while it appears to continue to be for some justices a
“tradition” of this Court for a justice who disqualifies himself or herself
from a case to not give written reasons, it is a “tradition of secrecy” that
must for all justices end now. An impartial judiciary is “ill served by
casting a cloak of secrecy around the operations of the courts . . . .”7
______________________________
1
Article 6, § 6 of the 1963 Michigan Constitution states, in full:
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.
2
Const 1963, art 6, § 6, supra, n 1.
3
In my statement of nonparticipation in In re JK, supra, I also proposed for
public comment amendments of MCR 2.003 that would require that a
justice publish in the record of the case the reasons for the decision to
participate or not participate in the case when the issue of disqualification
was raised by a party, the justice himself or herself, or another justice. I
further outlined the procedure for a justice to raise his or her potential
disqualification with the parties and their attorneys. See In re JK, supra,
220-221 (Weaver, J., nonparticipation statement).
6
4
See Hahn, supra:
“WEAVER, J., (concurring). I concur in the order of denial and note
that Justice Cavanagh has properly supplied to the justices and staff his
reason for his decision not to participate in this case because his daughter,
Megan Cavanagh, represents the defendant, Robert Hahn. However, in this
case, he has not, as required by Michigan Const 1963, art 6, § 6, requested
that the reason for his decision be included with the order. I further note
that Justice Cavanagh has informed me that in the future he will request
that his reasons for not participating be included with his decisions on the
orders. [Hahn, supra, ___ Mich ___ (2007).]”
5
In addition, when justice “non-hold memos” associated with orders
scheduled to enter are received monthly in large batches, with sometimes
less than a week before the scheduled entry date, a justice does not have a
reasonable opportunity to learn about a fellow justice’s recusal from a case.
6
My revised proposal for the 2007-2008 election cycle to reform and
improve, not abolish, the present system of election and appointment of
justices, along with reform of term limits for justices, will be published on
my personally funded website, , this year, 2007.
My similar proposal to reform and improve, not abolish, the election and
appointment of justices for the 2005-2006 election cycle was circulated in
2005-2006.
7
Scott v Flowers, 910 F2d 201, 213 (CA 5, 1990).
7
TAYLOR, C.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.
March 23, 2007 _________________________________________
t0320 Clerk