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<i@n¢@ 270 (eih ed 1929).][51

ln Evans v Gore, 253 US 245, 247-248 (1920), the United States Supreme Court held that
the members of that Court could not decline to decide whether the compensation of
federal judges was subject to the power to tax because there was no other appellate
tribunal to which the plaintiff judge could go. ln Will, supra at 2l5-2l6, a case involving
compensation for all federal judges, the Court similarly held that, where all members of
the Court would ordinarily have been required to recuse themselves for having a direct
interest in the case, none of the members was disqualified because otherwise the case
could not have been heard at all. The Court recognized that "[t]he Rule of Necessity has
been consistently applied in this country in both state and federal courts." Id. at 2l4.
See, e.g., Blz`ss v Caz`lle Bros, l49 l\/lich 601 (1907).

(5) Among the universe of potential cases or controversies coming before this or
any other supreme court, it cannot be that only those pertaining to judges and the
judiciary alone are immune from judicial review. The present dispute concerns whether
the proposed initiative has complied with the procedures of the l\/Iichigan Constitution.
As with any other proposed changes in the constitution, such compliance is required and
is subject to judicial review. The "‘overarching right of the people’ is to have the
constitution that they have ratified given respect and accorded its proper meaning."
Michz`gan U)u`z‘ecl Conservation Clubs v Secretary of State (After Rernancl), 464 Mich 359,
393 (200l) (Markman, J., concurring).

(6) The "Rule of Necessity" is properly invoked in this case because, under
ordinary circumstances, each of our colleagues would clearly be precluded by MCR
2.003(]3)(5) from participation in this case. To our knowledge, none of our colleagues, or
even RMGN, has disputed this point. Each of our colleagues is directly interested in this
case because, as in Evans and Wz`ll, each has an obvious and substantial economic interest
in the subject matter of the controversy. As stated, the five justices who will remain on
this Court if the proposed initiative is adopted will incur a l5 percent decrease in annual
salary ($24,691) for the remainder of their judicial service. Given the remaining number
of years these justices may continue to serve, the overall diminution in salary will range
from an estimated $99,000 to $346,000. At a compounded interest rate of four percent,

5 The "Rule of Necessity" is distinct from the "Duty to Sit" doctrine, under which "there
is an obligation to remain on any case absent good grounds for recusal," especially in a
court of last resort, such as the supreme court of a jurisdiction, where there are no
substitute judges to take the place of those who are recused. Aclaz`r, supra at 1040-1041
(statement by Taylor, C.J., and l\/larkman, .l.), citing Laz`ra' v Tatum, 409 US 824, 837
(]972).

this amount would range from $109,000 to $470,000 during their potential remaining
years of service on this Court.G ln addition, for those justices who participate in the
defined-benefit retirement plan, their benefits will be based upon a percentage of their
final annual salary, i.e., upon the reduced salary implemented by the proposed initiative.
For those justices who participate in the defined-contribution retirement plan, their
benefits will reflect a diminished employer contribution based upon the reduced judicial
salary. Applying the 2004 Social Security actuarial tables, the overall reduction in
retirement benefits among our five colleagues would range from $7,000 to $149,000;
taking into consideration a compounded interest of four percent for the periods of life
expectancy, these amounts would range from $8,000 to $185,000. Thus, the total salary
and retirement benefit losses incurred by our colleagues would range from $106,000 to
$494,000; with interest considered, these amounts would range from $117,000 to
$655,000.7 To say the least, this constitutes an "economic interest" in the proposed
initiative under MCR 2.003(3)(5).8

(7) That the "economic interest" of each of the seven justices in the proposed
initiative might vary in its particulars is not relevant under the "Rule of Necessity." lf a
judge has "an economic interest," or "more than a de minimis interest," that would be
adversely affected, disqualification is triggered under l\/lCR 2.003(]3)(5). There is no
caselaw that distinguishes between greater or lesser economic interests, and no hierarchy
of disqualifying interests. Rather, what is determinative is simply whether a judge under
ordinary circumstances would be subject to recusal under l\/ICR 2.003(}3)(5); there are
either grounds for recusal or there are not. Once again, we are unaware of any justice of
this Court who has asserted that he or she would not be subject to recusal in this appeal
by virtue of how the proposed initiative would affect his or her financial circumstances if
it is approved.9

6 The 30-year bond rate as of August 26, 2008, is 4.41% and the lO-year rate is 3.80%.

7 None of these calculations, of course, take into consideration that some justices may,
although not compelled to do so, nonetheless retire from this Court in order to avoid a
loss in retirement benefits.

8 lt goes without saying that although neither of us will be receiving a judicial salary if
the proposed initiative is ratified, we will also no longer be performing judicial duties in
return, and will presumably be receiving compensation in some other position.

9 We believe that Rl\/IGN misapprehends the United States Supreme Court’s holding in
Aetna Lzfe [ns Co v Lavoie, 475 US 8l3 (1986). ln Aetna, the Supreme Court held that,
although one justice of the Alabama Supreme Court was disqualified, the remaining eight
justices were not. Id. at 826-827. Thus, Aetna has no application here, where plainly all
seven justices of this Court would be disqualified lt is noteworthy that the Supreme
Court additionally engaged in the following hypothetical: "[A]ccepting appellant’s
expansive contentions might require the disqualification of every judge in the State. lf

(8) The l\/lichigan Supreme Court is this state’s highest court and alone is capable
of conclusively deciding whether the proposed initiative complies with our constitution.
There is clearly no alternative forum to resolve the state constitutional issues being raised
in the instant case. There are no procedures for replacing justices of this court who must
recuse themselves from a case, and there is no federal jurisdiction in interpreting the
constitution of this state.

(9) A due process violation occurs where a person’s liberty or property is
subjected to "‘the judgment of a court, the judge of which has a direct, personal,

so, it is possible that under a ‘rule of necessity’ none of the judges or justices would be
disqualified." Id. at 826, citing Will, supra at 2l4. Thus, the Supreme Court suggested
that, if the "Rule of Necessity" applied, none of the justices would be disqualified under
this rule, including the justice previously determined to be disqualified and who would
have had a "greater" interest. Nothing in Aetna supports RMGN’S proposition that a
court applying the "Rule of Necessity" must take into account variations in judges’
economic interests. Rather, it stands for the entirely uncontroversial proposition that,
when one judge is disqualified but a sufficient number who are not disqualified can
participate, the case should proceed without the participation of the disqualified judge.

ln addition, DuPlantz`er v Unz`ted States, 606 F2d 654 (CA 5, 1979), upon which
RMGN also relies, actually supports the proposition that it is improper to distinguish
among disqualified judges. In that case, the plaintiffs challenged a requirement that all
federal judges file personal financial statements, which failure could result in a penalty up
to $5,000. The court applied the "Rule of Necessity" because all federal judges had an
interest in the outcome and refused to distinguish between judges who had filed their
personal financial statements and those who had not. Id. at 662-663.

Finally, Wheeler v Bd of Trustees of Fargo Consolidated School Dist, 200 Ga 323
(1946), upon which RMGN also relies, supports the proposition that it is improper to
distinguish among disqualified judges. ln l/Wzeeler, all the justices had a disqualifying
interest because the new constitution that was being challenged raised each of their
salaries. Relying on the "Rule of Necessity," six of the justices did not disqualify
themselves, including one of the justices who asserted a "greater" disqualifying interest
as he had been the state’s attorney general and had offered "legal opinions concerning the
instrument now under attack." Id. at 329. lndeed, the court held that the "Rule of
Necessity" applied to this justice "with the same force and effect" as it applied to the
other justices who were not disqualifying themselves. Id. With regard to a seventh
justice who did disqualify himself, he did so only because the new constitution that was
being challenged created his very position on the court. Therefore, he only had the
authority to sit as a justice if the challenge to the new constitution failed. As the court
explained, "Should he participate in this case, his very act in doing so would presuppose
the validity of the instrument under attack." Id. at 328. ln contrast, all of the justices of
this Court clearly hold a valid position on this Court.

substantial, pecuniary interest in reaching a conclusion against him."’ Aetna Lzfe Ins Co
v Lavoie, 475 US 813, 822 (1986), quoting Tumey v Ohio, 273 US 510, 523 (1927). "A
fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349
US 133, 136 (1955). However, "most matters relating to judicial disqualification [do] not
rise to a constitutional level." Fed Trade Comm v Cement Institute, 333 US 683, 702
(1948). "The Due Process Clause demarks only the outer boundaries of judicial
disqualifications." Aetna, supra at 828.

The due process requirement against a judge having a "direct, personal,
substantial, pecuniary interest" in a case is encompassed in the more stringent l\/[CR
2.003(}3)(5). Therefore, if a judge is not disqualified under MCR 2.003(}3)(5), the
constitutional due process requirement has presumably been met. ln this case, each of
the justices is presumptively disqualified under l\/[CR 2.003(13)(5), and therefore,
RMGN’s due process rights arguably cannot be protected. However, to altogether
deprive a party, as in this case, of any tribunal to hear a case or controversy is an even
greater denial of due process.m As the United States Court of Claims has stated:

We regret that it falls our lot to decide these cases, and we would
much prefer that a resolution of the controversy not be our responsibility.
Nevertheless, we realize that the plaintiffs are entitled to have their cases
heard and decided by a court of the United States, and under the law there
is no other court to which they could go. Should we refuse to hear and
decide their cases, the doors of the courts would be closed to them. This
could amount to a denial of due process under the 14th amendment to the
Constitution. [Atkins v United States, 214 Ct Cl 186, 207 (1977).]

Accordingly, the requirements of due process must normally yield to the "Rule of
Necessity" -- a doctrine itself predicated on due process requirements -- and the
members of this Court must decide this case. That is, because all of the justices on this
Court have an economic interest in the outcome of this case, all are disqualified;
however, because this would deprive the parties of a forum in which to litigate, none of
the justices can be disqualified

10 As Rl\/IGN itself recognizes, "[t]he rule of necessity is a[n] . . . exception to the Due

Process requirement of an impartial decision maker" as it is only applicable where it is
necessary to "satisfy a litigant’s Due Process right to have his case heard." Brief of
RMGN at 9. lndeed, the "Rule of Necessity" necessarily must constitute an exception to
ordinary guarantees of due process because, by definition, it expressly allows judges to
hear a case who would ordinarily be viewed as "interested."

(10) For these reasons, we are not only exempted from recusal in this case, but we
are obligated to participate. Wz`ll, supra at 213. Therefore, we deny the motion to

disqualify.

l, 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.

Augusr zs, 2003  f 

Clerk

 

