(concurring in part and dissenting in part). In each of these consolidated cases, the trial judge recused herself midtrial, stating that an appearance of impropriety on her part may have existed. In People v Hicks, the successor judge gave the defendant three options; in People v Bellew, the successor judge did not. The successor judges both declared mistrials. The Court of Appeals held that retrials were barred by double jeopardy.1
In its analysis, the lead opinion focuses on one distinction between the two cases: whether the successor judge gave the defendant options before declaring a mistrial. The lead opinion does not address the threshold issue whether the trial judge’s recusal was proper.
Even though the lead opinion reaches the proper result in Bellew, I must respectfully dissent in both the instant cases._
*846I. THE CONSTITUTIONAL STANDARD
A. DOUBLE JEOPARDY
In People v Dawson, 431 Mich 234; 427 NW2d 886 (1988), this Court examined the Double Jeopardy Clauses found in the Michigan and federal constitutions. We noted that "[t]he purpose of the double jeopardy prohibition is to limit the state to having generally only one attempt at obtaining a conviction.” Id. at 250. We further explained:
The Double Jeopardy Clause does not bar all retrials. . . . The [United States Supreme] Court has fashioned a balancing test focusing on the cause prompting the mistrial. The thrust of the Court’s decisions is that the Double Jeopardy Clause does not bar retrial where the prosecutor or judge made an innocent error or where the cause prompting the mistrial was outside their control. Where the motion for mistrial is made by the prosecutor, or by the judge sua sponte, retrial will be allowed if declaration of the mistrial was "manifestly] necess[ary]” .... [Id. at 252. Emphasis added.]
We reiterated this balancing test:
"[D]efendant’s interest in finality . . . [and] in having his guilt or innocence decided in one proceeding . . . must be balanced against society’s interest in affording the prosecutor one full and fair opportunity to present his evidence to the jury.” [Id. at 252, n 44, quoting Oregon v Kennedy, 456 US 667, 682; 102 S Ct 2083; 72 L Ed 2d 416 (1982) (Stevens, J., concurring).]
B. MANIFEST NECESSITY
In Dawson, we restated the manifest-necessity concept:
"[T]he law has invested Courts of justice with the authority to discharge a jury from giving any *847verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” [Dawson at 252, quoting United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824).]
Further, "[w]here a reviewing court holds that the mistrial was not manifestly necessary, the double jeopardy prohibition bars retrial.” Id. at 252-253, n 47 (citation omitted).
In United States v Jorn, 400 US 470, 485; 91 S Ct 547; 27 L Ed 2d 543 (1971) (plurality), Justice Harlan stated that if the defendant does not consent to the motion for mistrial, "the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” (Citation omitted.) Justice Harlan emphasized the defendant’s interest:
Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate. [Id. at 486.]
In People v Benton, 402 Mich 47, 57, 61; 260 NW2d 77 (1977), a plurality of this Court embraced Jorn’s direction to the trial judge to explore "viable alternative curative measures before sua sponte declaring a mistrial.” Moreover, "[b]efore a trial judge sua sponte declares a mistrial he or she should make explicit findings, after a hearing on the record, that no reasonable alternative exists.”
II. THE CASES AT BAR
The lead opinion properly focuses its inquiry on *848whether manifest necessity justified each mistrial.2 It relies on direction from Jorn:
[T]he determination whether manifest necessity existed to justify a mistrial necessarily depends on whether a "scrupulous exercise of discretion” by the successor judge would have revealed reasonable alternatives to declaring a mistrial. [Opinion of Griffin, J., p 844.]
I agree with the lead opinion’s analysis of the constitutional considerations up to this point. However, I would add an additional inquiry that we stated in Dawson: whether the cause prompting the mistrial was outside the prosecutor’s and the trial judge’s control. Id. at 252.
In each of the cases at bar, I would hold that the cause prompting mistrial was within the control of the prosecutor or of the trial judge. Therefore, neither mistrial was compelled by manifest necessity.
In each case, the lead opinion sidesteps the issue whether the trial judge’s recusal, on the basis of the appearance of impropriety, was justified.3 Instead, the lead opinion equates the trial judge’s recusal to a disability, and examines the successor judge’s actions. By focusing on the "clean-up” part of the case histories, the lead opinion would create an arbitrary, bright-line: A judge can disqualify *849himself from a case for any reason, and as long as the successor judge recites a litany of options, whether or not they are meaningful options,4 manifest necessity is established and retrial can proceed.
Unfortunately, as Justice Harlan indicated,5 manifest necessity cases are much more complex and should be decided by the constitutional balancing test. Accordingly, I believe that the sounder approach is to focus on the real cause of each trial’s termination: the trial judge’s recusal without apparent justification. I would then determine whether manifest necessity existed, "whether a 'scrupulous exercise of discretion’ by the successor judge would have revealed reasonable alternatives to declaring a mistrial,” Griffin, J., ante at 844, and whether the cause of the mistrial was outside the control of the prosecutor and the trial judge. I turn now to the individual cases.
III. PEOPLE v HICKS
In Hicks, neither party moved for recusal. The trial judge, sua sponte, recused herself and transferred the case to the chief judge, who in turn assigned the case to a successor judge. When the trial judge recused herself, the prosecutor could have filed an interlocutory appeal for a determina*850tion whether the appearance of impropriety was sufficient to justify recusal and, in turn, whether manifest necessity was established, compelling a mistrial. The prosecutor did not do so. If the appellate court had ruled that the trial judge should proceed with the trial, the trial could have continued to its conclusion.6 A mistrial would then have been avoided.7 Therefore, the cause of the mistrial was within the prosecutor’s control.
I would hold that defendant Hicks’ right to have his fate decided in one proceeding by the sitting trial judge outweighed society’s interest in prosecuting him where the prosecutor did not pursue an interlocutory appeal of the trial judge’s recusal in order to preserve the prosecutor’s claim that manifest necessity compelled the mistrial.
IV. PEOPLE v BELLEW
In Bellew, the prosecutor moved for recusal. The trial judge granted this motion over the defendant’s objection and recused herself.8 Even though the trial judge did not declare a mistrial, the cause of the mistrial was within her control: she could have referred the case to the chief judge for a hearing on whether she could proceed.9 If the chief *851judge then ruled that she could proceed, the trial could have proceeded to its conclusion.10 A mistrial would then have been avoided.11
I would hold that defendant Bellew’s right to have his fate decided in one proceeding by the sitting trial judge outweighed society’s interest in prosecuting him where the trial court granted the prosecutor’s motion to disqualify herself, over the defendant’s objection, without first determining that recusal was necessary.
v. CONCLUSION
I would find that a reasonable alternative to mistrial existed, i.e., a hearing on whether recusal was required, and that the cause of the mistrial was not outside the control of the prosecutor in Hicks and the trial judge in Bellew. Therefore, in both of the instant cases, I would affirm the Court of Appeals holding that retrial was barred by double jeopardy.
Levin, J., concurred with Cavanagh, C.J.People v Hicks, 201 Mich App 197; 506 NW2d 269 (1993); People v Bellew, unpublished per curiam opinion of the Court of Appeals, issued January 7, 1994 (Docket No. 157434).
Neither defendant consented to waive his right to avoid double jeopardy.
The court rule provides:
A judge is disqualified when the judge cannot impartially hear a case .... [MCR 2.003(B).]
If a judge can impartially hear a case, a judge may not properly recuse herself over the objection of a party merely because there may be an appearance of impropriety, especially in a bench trial after the first witness has been sworn and the defendant is deemed to be "in jeopardy” for purposes of the Double Jeopardy Clause.
In Hicks, the successor judge offered three options that were each detrimental to the defendant. Opinion of Griffin, J., pp 835-836. For instance, recalling witnesses would deprive the defendant of any points made on the first cross-examination; at reexamination, the witnesses would be anticipating the defense counsel’s strategy. Further, simply substituting judges in a bench trial would deprive the defendant of having his trier-of-fact hear firsthand the testimony of the witnesses on cross-examination. Finally, the option of declaring a mistrial would deprive the defendant of his preferred choice of having the first trial judge decide his fate.
Jorn at 485. The discretionary decision to grant or deny a mistrial cannot be resolved by "rules based on categories of circumstances . . . .”
In Hicks at 202, the Court of Appeals majority found that the mere appearance of impropriety did not establish manifest necessity.
On the other hand, if the appellate court had ruled that the trial judge should not proceed, then a mistrial would have been proper, and it would have been compelled by manifest necessity.
I reject Justice Boyle’s contention that defendant Bellew waived his right to avoid double jeopardy. The defendant combined his motion for mistrial with a motion to dismiss on double jeopardy grounds. Further, he had vigorously objected to the trial judge’s recusal. Even the prosecutor in the instant case expressly declined to rely on consent. Therefore, I believe that the defendant’s motion for mistrial was not a waiver of his constitutional protection against double jeopardy.
In fact, the defendant requested an evidentiary hearing, which the judge refused to conduct.
The prosecutor could then have chosen to file an interlocutory appeal.
If the chief judge ruled that she could not proceed, then, subject to appeal, a mistrial would have been proper and compelled by manifest necessity.