Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  March 31, 2010                                                                            Marilyn Kelly,
                                                                                                Chief Justice

  137111 (145)(159)                                                                   Michael F. Cavanagh
                                                                                      Elizabeth A. Weaver
                                                                                       Maura D. Corrigan
                                                                                      Robert P. Young, Jr.
                                                                                      Stephen J. Markman
  ANTHONY PELLEGRINO, Individually and                                                Diane M. Hathaway,
  as Personal Representative of the Estate of                                                        Justices
  Shirley Ann Pellegrino,
               Plaintiff-Appellee,
  v                                                        SC: 137111
                                                           COA: 274743
                                                           Wayne CC: 03-325462-NI
  AMPCO SYSTEMS PARKING,
           Defendant-Appellant.

  _________________________________________/

          By order of January 28, 2010, the Court granted the motion for full-Court
  consideration of the motion for disqualification of Justice Markman and denied the
  plaintiff’s motion to disqualify Justice Markman.

         By order of January 28, 2010, the Court denied the motion for a full-Court
  decision on the motion to disqualify Justice Corrigan.

         By order of January 28, 2010, the Court denied the motion for a full-Court
  decision on the motion to disqualify Justice Young.

         KELLY, C.J. (concurring).

        I concur with the Court’s resolution of the motions seeking the recusal of Justices
  Corrigan, Young, and Markman. I write separately in response to Justices Corrigan’s and
  Young’s decisions to not participate.

                                       THE DUTY TO SIT

         Justices Corrigan and Young’s reason for not participating, as they have stated
  here and in their dissenting statements in ADM 2009-4, is that amended MCR 2.003 is
  unconstitutional. Surely Justices Corrigan and Young are entitled to their personal view
  on this subject. But neither this Court nor any other has adopted that view. Hence,
  amended MCR 2.003 is clothed in a presumption of constitutionality. 1

  1
    Court rules are interpreted using the same principles that govern statutory interpretation.
  Haliw v Sterling Hts, 471 Mich 700, 704 (2005). Statutes are clothed in a presumption of
  constitutionality. Johnson v Harnischfeger Corp, 414 Mich 102, 114 (1982); see also,
  State v Albert, 899 P2d 103, 113 n 15 (Alas, 1995) (“Court rules, like statutes and
  regulations, are presumptively constitutional and the burden of proving
                                                                                             2


       Moreover, a justice has an affirmative duty to participate to the extent possible in
matters that are brought before this Court. As former Chief Justice Taylor and Justice
Markman stated in a 2006 Court decision, “Particularly on the supreme court of a state, a
body in which judges who recuse themselves cannot be replaced, it is necessary that
judges participate in cases in which recusal is not required.” 2 This doctrine is known as
the “duty to sit.” Under that duty, there is an obligation for a justice to remain on any
case unless disqualified from doing so. 3 Indeed, the United States Court of Appeals for
the Second Circuit has opined that “where the standards governing disqualification have
not been met, disqualification is not optional; rather, it is prohibited.” 4 Therefore, one
wonders by what authority Justices Corrigan and Young refuse to acknowledge the
constitutional status of the rule at present and, given their duty to sit, refuse to vote on
this motion. 5

                          THE CONSTITUTIONALITY OF MCR 2.003

         With respect to their challenges to the constitutional status of MCR 2.003, Justices

unconstitutionality is on the party challenging them.”); Suchit v Baxt, 176 NJ Super 407,
425 (1980) (“Rules adopted by the Supreme Court are presumed constitutional, and it is
the burden of the party contesting the rule to show that the Supreme Court’s rule is in fact
arbitrary and unreasonable.”); Campuzano v Peritz, 376 Ill App 3d 485, 490 (2007)
(“‘Supreme Court rules are to be construed in the same manner as statutes.’ Statutes are
presumed constitutional . . . .”) (citations omitted); State v Waldon, 148 Wash App 952,
962 (2009) (“‘“The construction of court rules is governed by the principles of statutory
construction.”’ . . . Statutes are presumed constitutional as written and should be
construed to be constitutional if possible. ‘[A] court rule will not be construed to
circumvent or supersede a constitutional mandate.’”) (citations omitted).
2
  Adair v Michigan, 474 Mich 1027, 1030 (2006) (statement of Taylor, C.J., and
Markman, J.). Justices Corrigan and Young did not join former Chief Justice Taylor and
Justice Markman’s decision on the recusal motion in Adair, but they explicitly endorsed
the legal analysis of the ethical questions presented in it. Id. at 1051 n 1 (statement of
Corrigan, J.); id. at 1053 (statement of Young, J.).
3
    See Laird v Tatum, 409 US 824, 837 (1972) (memorandum of Rehnquist, J.).
4
    In re Aguinda, 241 F3d 194, 201 (CA 2, 2001).
5
  Justice Young claims that “it is not clear that the duty to sit even applies to collateral
motions within cases before this Court.” This distinction is unsupported by any authority.
While a recusal motion may be “collateral” in that it is not dispositive of the merits of a
controversy, it is surely critical to the ultimate resolution of a case. Their participation in
the underlying appeal does not excuse Justices Corrigan and Young from their duty to sit
in all matters before the Court from which they are not disqualified.
                                                                                         3

Corrigan and Young argue that the insertion in the rule of the “appearance of
impropriety” standard has rendered the rule unconstitutional. 6 However, federal district
courts have rejected First Amendment constitutional challenges to a recusal standard that
is synonymous with the “appearance of impropriety” standard on numerous occasions. 7
Indeed, those courts have determined that a state has a compelling interest in preserving
the public’s confidence in the integrity and impartiality of its judiciary. Moreover, the
courts have repeatedly found that such recusal rules are narrowly tailored to meet that
interest and are neither overbroad nor vague. 8 As a result, they do not “chill” a judge’s
freedom of speech and do not violate the First Amendment. 9

6
  Justice Young claims that my defense of the constitutionality of MCR 2.003 is “little
more than a pastiche of legal non sequiturs.” Post at __. The fact remains, Justices
Corrigan and Young fail to cite any controlling authority for their assertion that MCR
2.003, as amended, or the “appearance of impropriety” standard, generally, is
unconstitutional. I do not contend that they have not given their reasons why they believe
the rule is unconstitutional, but contend that their reasons lack apposite legal authority.
7
  These cases have arisen in situations in which organizations send questionnaires to
judicial candidates seeking their views on controversial issues. Judges often refuse to
respond, citing a possible breach of the judicial canons. The organizations then file suit,
alleging that canons that call for recusal if a judge’s impartiality might reasonably be
questioned are unconstitutional because they chill a candidate’s protected speech under
Republican Party of Minnesota v White, 536 US 765 (2002).
The merits of these constitutional claims have not been addressed by circuit courts of
appeals because they are generally dismissed due to a lack of standing or ripeness. See,
e.g., Florida Family Policy Council v Freeman, 561 F3d 1246 (CA 11, 2009).
8
  Bauer v Shepard, 634 F Supp 2d 912, 948-950 (ND Ind, 2009); Indiana Right to Life,
Inc v Shepard, 463 F Supp 2d 879, 887 (ND Ind, 2006), rev’d in part on other grounds
507 F3d 545 (CA 7, 2007); Alaska Right to Life Political Action Comm v Feldman, 380 F
Supp 2d 1080, 1084 (D Alas, 2005), vacated in part on other grounds 504 F3d 840 (CA 9,
2007); North Dakota Family Alliance, Inc v Bader, 361 F Supp 2d 1021, 1043-1044 (D
ND, 2005); Family Trust Foundation of Kentucky, Inc v Wolnitzek, 345 F Supp 2d 672,
687 (ED Ky, 2004).
9
  Assuming, arguendo, that MCR 2.003 limits a judicial candidate’s constitutional right
to free speech, it remains unclear if forced disqualification because of that speech
constitutes a “penalty” giving rise to First Amendment standing. In Florida Family
Policy Council, 561 F3d at 1254-1255, the court declined to answer this question,
concluding that the plaintiff could not show that his claim was redressable. If forced
disqualification is not a “penalty,” a justice cannot make an adequate showing of “actual
injury” to establish standing. Id. at 1255 (“If . . . the only penalty is disciplinary
sanctions for a refusal to disqualify, then a judge’s fear of penalty is not objectively
reasonable. The fear is not objectively reasonable because it depends on speculation and
                                                                                         4


        Furthermore, a justice’s due process rights are not violated by the amended
version of MCR 2.003. The rule does not deny any rights to a justice who is recused
against his or her will. In his concurring opinion in Republican Party of Minnesota,
Justice Kennedy noted that states are free to “adopt recusal standards more rigorous than
due process requires, and censure judges who violate these standards.” 10 Justice
Kennedy’s majority opinion in Caperton v A T Massey Coal Co, Inc 11 reaffirmed this
point. Caperton specifically observed that the vast majority of states have adopted the
“appearance of impropriety” standard, a more rigorous standard than is required by due
process. The Court noted that most disputes over disqualification will be resolved under
state standards. Similar generally worded canons of judicial conduct have been upheld in
the face of constitutional challenges raised by judges sanctioned under those canons. 12

       In support of their argument, Justices Corrigan and Young cite provisions of the
state constitution that provide for removing a justice from office. But these provisions
are inapposite. Recusal deals only with removing a justice from a case, not removing
him or her from office.

        For decades this Court has had an unwritten practice that allowed an individual
justice to decide recusal motions directed at that justice. Additionally, we have held that
each justice has equal power and authority with respect to his or her colleagues. 13 Thus,
allowing an individual justice to overrule another justice’s decision on a recusal motion

conjecture that instead of disqualifying himself where the canons require him to do so,
the judge will refuse and face discipline.”).
Canon 2 of the Michigan Code of Judicial Conduct is similar to Canon 3(E)(1) of the
Florida Code of Judicial Conduct, which was at issue in Florida Family Policy Council.
Canon 2 requires a judge to adhere to the “appearance of impropriety” standard, which
presumably should result in the justice recusing himself/herself when an appearance of
impropriety exists.
10
  Republican Party of Minnesota, 536 US at 794 (Kennedy, J., concurring) (emphasis
added).
11
     Caperton v A T Massey Coal Co, Inc, 556 US ___; 129 S Ct 2252 (2009).
12
   See, e.g., In re Assad, __ Nev __; 185 P3d 1044, 1052 (2008), which upheld Canon 2,
§ 2(A) of the Nevada Code of Judicial Conduct against a due process challenge. Nevada
Canon 2(A) provides, “A judge shall respect and comply with the law and shall act at all
times in a manner that promotes public confidence in the integrity and impartiality of the
judiciary.”
13
  See, e.g., People v Paille #1, 383 Mich 605, 607 (1970) (“Whatever intra-court battles
occasioned the adoption of the restriction upon intra-court review, the wisdom of
preventing judges of equal station from overruling each other abides.”).
                                                                                            5

would violate this principle. However, also for decades, a majority of four justices has
had the authority to make binding orders and judgments on cases and controversies that
come before the Court. 14 A motion for the recusal of a justice is a “controversy” like
others that come before the Court. This is especially true once a party has filed such a
motion and the challenged justice has refused to recuse himself or herself.

       Therefore, I disagree with Justices Corrigan and Young that the principle of “one
man, one vote” and the voters’ right to elect their justices are violated by MCR 2.003.
The new recusal rule is intended to protect the due process rights of litigants when a
justice improperly refuses to recuse himself or herself.15 As noted previously, the
removal of a justice from an individual case is far different from the removal of a justice
from office. Protecting the due process rights of litigants in a particular case or
controversy thus supports, not undermines, the voters’ right to elect fair and unbiased
members of this Court.

        Justice Corrigan also claims that her “research has disclosed that no state requires
recusal on the basis of a general ‘appearance of impropriety,’ let alone permits other
justices to force a colleague’s recusal on the basis of such a standard.” She is mistaken.
By Justice Corrigan’s own count, 16 there are at least eight other states in which a justice’s
decision not to recuse himself or herself may be reviewed by the entire court. 17 In other
states, review by the full court may be available, but remains an open question.

14
   In limited circumstances not applicable here, five votes are necessary for the Court to
take action.
15
   Justice Young sees no justification for permitting the disqualification of a justice for a
violation of Canon 2 of the Michigan Code of Judicial Conduct that has nothing to do
with a particular case. Post at __. I disagree. Certainly such a justification would exist if
a justice was apparently biased for or against the attorney representing a party in a case.
In that event, it could be argued that the appearance of impropriety had nothing to do
with the case itself. Another example could be found when a justice has become
incompetent. If that justice’s “‘conduct would create in reasonable minds a perception
that the judge’s ability to carry out judicial responsibilities with . . . competence is
impaired,’” Caperton, 129 S Ct at 2266 (citation omitted), then that justice should be
recused; in that instance, the appearance of impropriety arguably has nothing directly to
do with the substance of the case from which the justice should be recused. From these
examples, it becomes obvious that grounds for recusal should not be narrowly confined to
the case before the court in order for a justice to be removed from the case.
16
     See the chart accompanying Justice Corrigan’s statement in this matter.
17
   Justice Corrigan claims that many states’ practices in this regard are unwritten and
rarely exercised, so comparison is difficult. The fact remains that other states do allow
justices to vote on their colleagues’ recusal decisions.
                                                                                        6

Similarly, virtually all states require recusal for the appearance of impropriety. Some
states require recusal when the judge’s impartiality might reasonably be questioned. This
is a standard indistinguishable from the appearance of impropriety. Justice Corrigan thus
attempts to make a distinction between the two when there is none.

       Evidence that these two standards are functionally identical and treated as such
abounds. For example, Mississippi allows its supreme court justices to review an
individual justice’s decision to deny a recusal motion. The Mississippi Rules of
Appellate Procedure provide that “[a]ny party may move for the recusal of a justice of the
Supreme Court or a judge of the Court of Appeals if it appears that the justice or judge’s
impartiality might be questioned by a reasonable person knowing all the circumstances,
or for other grounds provided in the Code of Judicial Conduct or otherwise as provided
by law.” Miss R App P 48C(a)(i). Canon 2(A) of the Mississippi Code of Judicial
Conduct defines the test for an “appearance of impropriety” as “whether, based on the
conduct, the judge’s impartiality might be questioned by a reasonable person knowing all
the circumstances.” Hence, the two standards are defined using identical language.
Other examples equating the two standards are abundant in caselaw throughout the
United States. 18

       Justice Corrigan also criticizes the “appearance of impropriety” standard as a
broad, generally subjective and aspirational standard by which judges cannot
meaningfully judge one another. Yet Justice Young, who has joined Justice Corrigan’s
statement, explicitly disagrees. In Henry v Dow Chem Co, Justice Young, responding to
Justice Weaver’s statement regarding her participation in that case, stated:

             “Moreover, Justice Weaver has advocated a disqualification standard
      that requires judges to recuse themselves if there is merely an appearance
      of impropriety. She has cited with approval Canon 2 of the ABA Model
      Code of Judicial Conduct, which states that ‘[a] judge shall avoid . . . the
      appearance of impropriety in all of the judge’s activities’ and Model Canon
18
   See, e.g, Tracey v Tracey, 97 Conn App 278, 281 (2006) (“‘The [party] has met its
burden [of showing that a judge’s impartiality might reasonably be questioned] if it can
prove that the conduct in question gave rise to a reasonable appearance of impropriety.’”)
(citations omitted; second alteration added); Sussel v Honolulu City & Co Civil Service
Comm, 71 Hawaii 101, 103 (1989) (“‘[A]n appearance of impropriety’ is the proper
standard and any commissioner whose impartiality might reasonably be questioned
should be disqualified from hearing the appeal.”); Leslie W. Abramson, Appearance of
impropriety: Deciding when a judge’s impartiality might reasonably be questioned, 14
Geo J Legal Ethics 55, 55 n 2 (2000) (“Whether a judge’s impartiality might reasonably
be questioned is also referred to as the appearance of partiality, the appearance of
impropriety, or negative appearances.”). The title of Professor Abramson’s law review
article speaks for itself.
                                                                                            7

         3(E)(1), which states that a judge ‘shall disqualify . . . herself in a
         proceeding in which the judge’s impartiality might reasonably be
         questioned.’

                “The disqualification standard that she has publicly championed is
         an objective standard, not a subjective standard to be determined by her
         say-so.”[19]

In Caperton, Justice Kennedy also referred to the “appearance of impropriety” standard
as an objective one. 20

        Finally, Justice Young, with whom Justice Corrigan agrees, claims that the “lack
of case-specific limitations of the ‘appearance of impropriety’ clause illustrates the
unseemly haste with which the majority was driven to amend” MCR 2.003. Haste did
not occur here. Disqualification is an issue that has been at the forefront of the Court’s
attention for many years. In 2006, in Grievance Administrator v Fieger, Justice
Cavanagh wrote:

                . . . I take this opportunity to note that three alternate proposals, two
         of which have been crafted by [the former] majority, regarding how this
         Court should handle disqualification motions have been languishing in this
         Court’s conference room for a substantial period of time. In the same way I
         will look forward to the dust settling from the case at bar, I will similarly
         anticipate this Court’s timely attention to the important matter of
         disqualification motions. I take my colleagues at their word that the issue
         of disqualification will be handled in a prompt manner in the coming
         months.[21]

Thus, criticism of the amendments of MCR 2.003 as being “hast[y]” is off the mark.

                             IMPLICATIONS OF NONPARTICIPATION

       Justices Corrigan’s and Young’s decisions not to participate in today’s decision
are difficult to fathom. Apparently, the justices believe that their views regarding the
legitimacy of the validly enacted rule of this Court supersede the binding nature of the
rule. They provide no authority justifying their refusal to vote.

19
  Henry v Dow Chem Co, 484 Mich 483, 544 (2009) (opinion by Young, J.) (citation
omitted; emphasis in original).
20
     Caperton, 129 S Ct at 2266.
21
   Grievance Administrator v Fieger, 476 Mich 231, 327 n 17 (2006) (Cavanagh, J.,
dissenting).
                                                                                             8


        The Michigan Supreme Court operates by majority rule, meaning that four justices
have the power to render binding decisions on behalf of the Court. Those decisions bind
not only the parties to the controversies before the Court, but also the individual members
of the Court. Should an individual justice disagree with the majority’s decision, that
justice is free to dissent from the majority’s action. But a dissenting justice is not entitled
to ignore or abandon his or her duty to decide matters that come before the Court. Nor
may a justice announce by declarative fiat that the Court’s action is null and void. As
Justice Young stated in Sazima v Shepherd Bar & Restaurant, “I was not aware that a
dissenting justice could purport (much less had the authority) to nullify a holding of a
majority of this Court by simple declarative fiat.” 22 Justice Corrigan explicitly
acknowledged this principle in her dissent from the amendments of MCR 2.003. 23

       Justices Corrigan’s and Young’s decisions not to participate set a disturbing
precedent that one cannot reasonably believe they intend to create. Their decisions are
analogous to a justice refusing to participate in a matter governed by precedent from
which that justice dissented. Essentially, Justices Corrigan and Young now state that,
because they do not agree with MCR 2.003, as amended, they will refuse to follow it. 24
By contrast, I note that, despite his disagreement with the Court’s amendment of MCR
2.003, Justice Markman has participated in each of this Court’s decisions on the motions
for recusal.

       Furthermore, by refusing to vote in this matter, Justice Young engages in a telling

22
  Sazima v Shepherd Bar & Restaurant, 482 Mich 1110, 1111 (2008) (Young, J.,
concurring) (emphasis in original).
23
   See the order amending MCR 2.003, 485 Mich cxxiii-cxxiv (2009) (Corrigan, J.,
dissenting), citing Paille #1, Dodge v Northrop, 85 Mich 243, 245 (1891) (“Courts of
concurrent jurisdiction cannot set aside or modify the orders and decrees of other courts
of like jurisdiction.”), In re Wayne Co Prosecutor, 110 Mich App 739, 742 (1981)
(noting the holding in Paille #1 that “the dual function of Detroit Recorder’s Court as a
magisterial court as well as a felony trial court does not provide for intra-court review
whereby judges of equal station might overrule one another”), and Wayne Co Prosecutor
v Recorder’s Court Judges, 81 Mich App 317, 322 (1978) (“Judges of co-equal authority
lack jurisdiction to set aside the orders of bond forfeiture issued by their fellow judges.”).
24
  Justice Young claims that he “merely dissent[s]” from the Court’s justifications for the
amended disqualification rule. Post at __. But Justice Young’s statement is not a
dissenting statement. If it were, “(dissenting)” would appear after “Young, J.” at the
outset of the text. It does not. A dissenting statement would also indicate that Justice
Young is participating, but that he disagrees with the Court’s reasoning or analysis. By
contrast, Justice Young’s statement is an explanation of his refusal to participate and
acknowledge that he is bound by MCR 2.003, as amended.
                                                                                           9

inconsistency. In cases involving the application of MCR 7.305(B), Justice Young has
voiced his belief that the court rule is unconstitutional but has conceded that he is bound
to follow it. He thereafter participated in cases applying that rule. For example, in In re
Certified Question (Waeschle v Oakland Co Medical Examiner), Justice Young stated:

                 I continue to adhere to my stated position in In re Certified Question
         (Wayne Co v Philip Morris, Inc), that this Court lacks the authority under
         state law to answer certified questions. However, this position has failed
         to carry the day. As the final arbiter of state law, this Court has concluded
         that it has the authority to answer certified questions. Accordingly, while
         this Court may exercise that authority, I will exercise careful discretion
         before answering any certified question. I would decline to answer the
         question in this instance.[25]

Thus, Justice Young, despite disagreeing with the Court’s conclusion in In re Certified
Question (Wayne Co v Philip Morris, Inc) that it has the authority to answer certified
questions, did in fact exercise that authority. He also properly conceded that a majority
of this Court acts as the final arbiter of state law.

       Having made that concession, Justice Young now claims that “this Court’s final
authority does not extend to questions of federal constitutional law.” 26 Accordingly, he
believes that he can rightfully refuse to participate in the matter now before the Court.
Admittedly, this Court is not the final arbiter of federal constitutional law. That power
rests with the United States Supreme Court. Yet, as Justice Young well knows, until a
majority of this Court or the United States Supreme Court declares the rule
unconstitutional under the state or federal constitution, a presumption of constitutionality
attaches to the rule. Justice Young is not released from the binding effect of the
presumption that the rule is constitutional by an earnest belief that it is unconstitutional.
Also, he can hardly sustain his assertion that he has “never claimed that the Court’s
action [regarding the amendments of MCR 2.003] is ineffective” if he refuses to abide by
the rule. 27


25
   In re Certified (Waeschle v Oakland Co Medical Examiner), 485 Mich ___ (Docket
No. 140263, entered March 12, 2010) (Young, J., dissenting) (citations omitted). In In re
Certified Question (Wayne Co v Philip Morris, Inc), 622 NW2d 518 (2001), Justice
Young opined that the Court lacked the constitutional authority to resolve certified
questions under MCR 7.305(B). He stated, “However, because that position did not carry
the day, I concur in the order in this case requesting supplemental briefing and oral
argument.” Id.
26
     Post at __ (emphasis in original).
27
     Post at __.
                                                                                           10

      Likewise, in In re Certified Question from the Fourteenth District Court of
Appeals of Texas (Miller v Ford Motor Co), the majority opined:

              Concerning Justice Cavanagh’s solicitude for Justice Young’s
       ‘constitutional conscience,’ Justice Young . . . has written that this Court
       lacks the authority to answer certified questions, but his position did not
       carry the day. Five justices, including Justice Cavanagh, disagreed. Just as
       Justice Cavanagh is within his rights as a supporter of certified questions
       not to answer a certified question in a particular case (his position here),
       Justice Young as an opponent of certified questions is within his rights to
       answer a certified question, because this is now a part of our state’s
       ‘judicial power.’ Indeed, Justice Young has previously answered certified
       questions and, in fact, authored a majority opinion responding to a certified
       question. Justice Young also joined Justice Cavanagh’s opinion in Wayne
       Co [v Philip Morris, Inc]. . . . In respecting that the law is the law even
       where he disagrees with that law, Justice Young’s determination to respect
       the majority position of this Court and to participate in certified questions is
       the only honorable position that could be taken by a justice of this Court.[28]

Justice Young signed the majority opinion in that case. Yet now, in an analogous case
involving application of a court rule that Justice Young believes is unconstitutional, he
strays from his previously announced principles.

       Finally, I do not expect that members of this Court will always agree about what
the law is or how to apply it in a given case. But I do hope that our disagreements will
focus on the legal issues, 29 providing a level of discourse appropriate to the state’s
highest court. The emotional 30 and political 31 rhetoric that peppers Justices Corrigan’s


28
  In re Certified Question from the Fourteenth District Court of Appeals of Texas (Miller
v Ford Motor Co), 479 Mich 498, 502 n 2 (2007) (citations omitted).
29
  Both Justice Young and Justice Corrigan claim that the majority has refused to consider
the significant constitutional issues that they have asked be considered. Post at __. This
claim is belied by the record of our public administrative conference of March 11, 2010,
when the Court devoted more than 30 minutes of discussion to the merits of their
proposed amendments to MCR 2.003. See minutes 2:35:30 to 3:08:55 of the March 11,
2010,              public               administrative           conference             at
<http://www.michbar.org/courts/virtualcourt.cfm> (accessed March 25, 2010).
30
  See post at __ (“Chief Justice Kelly’s . . . statement[] . . . contain[s] little more than a
pastiche of legal non sequiturs.”); post at __ (“MCR 2.003(C)(1)(b)(ii) is a startling and
supremely stupid policy that could have no conceivable purpose . . . .”); post at __
(“Unfortunately, majorities rarely conceive or concede that they could be capable of
                                                                                         11

and Young’s statements is ill-suited to this pursuit.

                                       CONCLUSION

       In sum, Justices Corrigan and Young have abdicated their duty to sit in this matter.
Additionally, their claim that MCR 2.003 is unconstitutional is without merit and
unsupported by any legal authority. Nearly all other states employ a recusal rule
incorporating language similar to our “appearance of impropriety” standard.
Furthermore, in at least eight other states, a justice’s decision not to recuse himself or
herself may be reviewed by the entire court.

       As amended, MCR 2.003 puts into writing for the first time a formal procedure for
the disqualification of justices of this Court. In doing so, the Court has become more
accountable to litigants and to the public generally. I continue to believe that the justice
system and this Court can only be stronger for it.

       HATHAWAY, J. (concurring).

       I concur with this Court’s resolution of the disqualification motions seeking the
recusal of Justices Corrigan, Young, and Markman. Further, I fully agree with the
analysis set forth in Chief Justice Kelly’s concurring statement.

        I, too, believe it is clear that our newly adopted amendments to MCR 2.003 are
constitutional and appropriate. First and foremost, the United States Supreme Court has
already addressed this issue. See Caperton v A T Massey Coal Co, Inc, 556 US ___; 129
S Ct 2252; 173 L Ed 2d 1208 (2009). Caperton set forth, clearly and unequivocally, that
it is appropriate for states to adopt the appearance-of-impropriety standard within their
canons of ethics and to incorporate that standard into their disqualification rules. The
Caperton opinion states:

             One must also take into account the judicial reforms the States have
       implemented to eliminate even the appearance of partiality. Almost every
       State—West Virginia included—has adopted the American Bar
       Association’s objective standard: “A judge shall avoid impropriety and the
       appearance of impropriety.” ABA Annotated Model Code of Judicial
       Conduct, Canon 2 (2004); see Brief for American Bar Association as

abuse of power.”); post at __ (“[The Chief Justice’s] claim denigrates the judicial offices
that Michigan citizens have entrusted to their judges.”).
31
   See post at __ (“‘“I think the national recusal movement is an effort to so gum up
[judicial] elections that we are almost forced into an alternative, such as appointing
judges.”‘”) (citations omitted).
                                                                                         12

      Amicus Curiae 14, and n. 29. The ABA Model Code’s test for appearance
      of impropriety is “whether the conduct would create in reasonable minds a
      perception that the judge’s ability to carry out judicial responsibilities with
      integrity, impartiality and competence is impaired.”             Canon 2A,
      Commentary; see also W. Va. Code of Judicial Conduct, Canon 2A, and
      Commentary (2009) (same).

                                           ***

             These codes of conduct serve to maintain the integrity of the
      judiciary and the rule of law. The Conference of the Chief Justices has
      underscored that the codes are “[t]he principal safeguard against judicial
      campaign abuses” that threaten to imperil “public confidence in the fairness
      and integrity of the nation’s elected judges.” Brief for Conference of Chief
      Justices as Amicus Curiae 4, 11. This is a vital state interest:

      “Courts, in our system, elaborate principles of law in the course of
      resolving disputes. The power and the prerogative of a court to perform
      this function rest, in the end, upon the respect accorded to its judgments.
      The citizen’s respect for judgments depends in turn upon the issuing court’s
      absolute probity. Judicial integrity is, in consequence, a state interest of the
      highest order.” Republican Party of Minn. v. White, 536 U. S. 765, 793
      (2002) (Kennedy, J., concurring).

      It is for this reason that States may choose to “adopt recusal standards
      more rigorous than due process requires.” Id., at 794; see also Bracy v.
      Gramley, 520 U. S. 899, 904 (1997) (distinguishing the “constitutional
      floor” from the ceiling set “by common law, statute, or the professional
      standards of the bench and bar”).

             “The Due Process Clause demarks only the outer boundaries of
      judicial disqualifications. Congress and the states, of course, remain free to
      impose more rigorous standards for judicial disqualification than those we
      find mandated here today.” [Aetna Life Ins Co v] Lavoie, [475 US 813,]
      828[(1986)]. Because the codes of judicial conduct provide more
      protection than due process requires, most disputes over disqualification
      will be resolved without resort to the Constitution. Application of the
      constitutional standard implicated in this case will thus be confined to rare
      instances. [Caperton, 129 S Ct at 2266-2267 (emphasis added).]

      Our newly amended rule was designed to specifically address disqualification in
keeping with the standards and principles enunciated in Caperton. Our new rule
provides, in pertinent part:
                                                                                          13

                (1) Disqualification of a judge is warranted for reasons that include,
         but are not limited to, the following:

                                             ***

                 (b) The judge, based on objective and reasonable perceptions, has
         either (i) a serious risk of actual bias impacting the due process rights of a
         party as enunciated in Caperton v [A T] Massey [Coal Co, Inc, 556] US
         ___; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to
         the appearance of impropriety standard set forth in Canon 2 of the
         Michigan Code of Judicial Conduct. [MCR 2.003(C)(1).]

       The new rule is not unconstitutional or inappropriate merely because a minority of
justices on this Court disagree with incorporating an appearance of impropriety standard
within the rule. As recognized by the United States Supreme Court in the above-quoted
language, the appearance-of-impropriety standard is part of a code that serves to maintain
the integrity of our judiciary and the confidence of the public. Caperton recognized that
appearances of partiality can rise to such an extreme level that the due process rights of
parties become impaired, at which point disqualification is mandated by the United States
Constitution. But Caperton also recognized that states are free to impose more rigorous
standards than due process requires, including the appearance-of-impropriety standard.
Accordingly, it is constitutional to expressly include this standard within the rule.

       Further, I do not agree with any assertion that no other state requires recusal on the
basis of a general appearance-of-impropriety standard. This argument is premised on the
assumption that there is a difference between the standard “A judge shall disqualify
himself or herself in any proceeding in which the judge’s impartiality might reasonably
be questioned,” and a standard that requires recusal if there is an “appearance of
impropriety,” However, this argument draws a distinction where none exists. These
standards are one and the same. As acknowledged in Caperton, the test for appearance of
impropriety is “‘whether the conduct would create in reasonable minds a perception that
the judge’s ability to carry out judicial responsibilities with integrity, impartiality and
competence is impaired.’” Caperton, 129 S Ct at 2266 (citation omitted; emphasis
added). This test is the standard for determining whether a judge’s impartiality might
reasonably be questioned. The two are the same for purposes of disqualification.

      Moreover, I do not agree with any assertion that incorporating the appearance-of-
impropriety standard into our rule overshadows the other more specifically enumerated
grounds for disqualification set forth in MCR 2.003(C)(1), or that the ABA Model Code 32
32
     The ABA Model Codes can be found at

<http://www.abanet.org/judicialethics/resources/resources_aba.html> (accessed March
22, 2010).
                                                                                           14

provides otherwise. The ABA Model Code does not define impartiality by reference to
specifically enumerated examples of conduct, but rather uses the phrase “including but
not limited to the following circumstances,” followed by enumerated nonexclusive
scenarios for recusal in which a “judge’s impartiality might reasonably be
questioned . . . .” Further, the comments to the ABA Model Code make clear that a judge
is disqualified whenever the judge’s impartiality might reasonably be questioned,
regardless of whether any of the specifically enumerated provisions apply.

        Finally, I find concerns about a justice’s personal due process rights during the
disqualification procedure to be misplaced. Rather, the proper concern is the rights of
litigants to have a fair hearing by impartial jurists. I would direct those who believe that
the rights of jurists are superior to the rights of the public to Canon 1 of the Code of
Judicial Conduct, which provides:

                 An independent and honorable judiciary is indispensable to justice in
         our society. A judge should participate in establishing, maintaining, and
         enforcing, and should personally observe, high standards of conduct so that
         the integrity and independence of the judiciary may be preserved. A judge
         should always be aware that the judicial system is for the benefit of the
         litigant and the public, not the judiciary. The provisions of this code should
         be construed and applied to further those objectives. [Emphasis added.]

      For all the above reasons, our disqualification rule is constitutional and
appropriate.

         CORRIGAN, J. (not participating).

        I do not participate in the orders issued under the new version of MCR 2.003 for
the reasons stated in my November 25, 2009, dissent from the rule’s promulgation.
Contrary to Chief Justice Kelly’s assertions, Justice Young and I have exhaustively
detailed our reasons for concluding that the rule is unconstitutional. See the order
amending MCR 2.003, 485 Mich ___ (entered November 25, 2009, amended December
3, 2009, ADM 2009-4) (Corrigan, J., dissenting). 33 We also explain here that the duty to
sit clearly cannot require official acts that would violate our oaths to uphold the federal
and Michigan constitutions. Const 1963, art 11, § 1. Further, I object to the majority’s
application of the new rule to this case in light of its decision to adjourn the discussion of
proposed changes to the rule previously scheduled for this Court’s December 2009 and
January 2010 public administrative hearings. As Justice Young observes, the proposed

33
     Available at
<http://courts.michigan.gov/supremecourt/Resources/Administrative/2009-04-112509.pd
f> (accessed March 8, 2010).
                                                                                         15

changes are intended to bring the rule into compliance with minimal due process and
First Amendment requirements, yet the majority here applies the rule in its current form
before even discussing the proposals.

       The rule currently requires a justice’s recusal on the basis of a mere “appearance
of impropriety . . . .” MCR 2.003(C)(1)(b). Yet my research has disclosed that no state
requires recusal on the basis of a general “appearance of impropriety,” let alone permits
other justices to force a colleague’s recusal on the basis of such a standard. See the chart
attached to this statement as Exhibit A. Instead, a majority of states apply rules
apparently derived from the American Bar Association (ABA) model rule, which requires
recusal if a judge’s “impartiality might reasonably be questioned . . . .” 34 Even those
states with significantly different rules do not employ an “appearance of impropriety”
standard. Further, the vast majority of states employ a practice similar to that of the
United States Supreme Court’s and Michigan’s traditional practices: an individual justice
decides whether recusal is required. Indeed, only eight states allow justices to cast votes
on their colleagues’ recusals. 35

        Significantly, the commonly used ABA standard—”[a] judge shall disqualify
himself or herself in any proceeding in which the judge’s impartiality might reasonably
be questioned”—appears at the outset of the ABA model rule’s listing of grounds for
recusal. ABA Model Rule 2.11(A). The comparable threshold Michigan standard, which
read “[a] judge is disqualified when the judge cannot impartially hear a case,” has now
been eliminated. See former MCR 2.003(B). Before its elimination, the Michigan
threshold standard for recusal —like those in other states similar to the ABA model rule’s
threshold—was followed by enumerated, nonexclusive reasons for recusal that informed
and limited the meaning of the threshold standard. For example, in Michigan and under
the ABA rule, a judge is disqualified if he is actually biased or prejudiced, see current
MCR 2.003(C)(1)(a) and ABA Model Rule 2.11(A)(1), or if he has an economic interest
in the subject matter in controversy, see current MCR 2.003(C)(1)(f) and ABA Model
Rule 2.11(A)(3). But Michigan has now deleted its threshold standard and simply offers
a list of nonexclusive, stand-alone reasons that require recusal. Most significantly,
Michigan alone includes the “appearance of impropriety” as one of these independent
criteria for recusal, MCR 2.003(C)(1)(b). This unique Michigan provision renders
superfluous the remaining, more specific enumerated grounds for recusal that we
previously shared with the majority of our sister states. Why would a party need to show

34
  See 2007 ABA Model Code of Judicial Conduct, Canon 2, Rule 2.11 (ABA Model
Rule 2.11), available at
<http://www.abanet.org/judicialethics/ABA_MCJC_approved.pdf> (accessed March 8,
2010).
35
  Further, many states’ practices in this regard are unwritten and rarely exercised, so
comparison is difficult.
                                                                                         16

that a justice is actually biased or has an actual economic interest in a case if that party
can merely claim an appearance of impropriety under the generalized standards of Canon
2 of the Code of Judicial Conduct?

        Chief Justice Kelly and Justice Hathaway assert that Michigan’s “appearance of
impropriety” standard is synonymous with the more common standard requiring recusal
when “the judge’s impartiality might reasonably be questioned.” But, contrary to their
implications, Michigan alone has adopted the “appearance of impropriety” as a stand-
alone enumerated ground for recusal. 36 Although some courts consider the two standards
to be roughly equivalent, the language is not identical, and the plain meaning of
“appearance of impropriety” under Canon 2 strikes me as dangerously broad in this
context. Most significantly, my colleagues ignore or unconvincingly explain away the
central problem with the “appearance of impropriety” standard: as just explained, because
of this Court’s unprecedented choice to adopt this standard as an independent reason for
recusal, it effectively renders nugatory the remaining more specific reasons for recusal.
Thus, our new, stand-alone criterion for recusal is most certainly not comparable to other
states’ threshold standards requiring recusal when a judge’s “impartiality might
reasonably be questioned,” which are circumscribed by concrete, illustrative lists of
specific reasons for recusal. If the majority’s genuine intent is to bring Michigan in line
with other states’ standards, it should adopt the common standard—requiring recusal
when a judge’s impartiality might reasonably be questioned—as a threshold standard at
36
    Chief Justice Kelly and Justice Hathaway incorrectly imply that the United States
Supreme Court observed in Caperton v A T Massey Coal Co, Inc, 556 US ___; 129 S Ct
2252 (2009), that the vast majority of states have adopted the “appearance of
impropriety” as a disqualification standard. To the contrary, as Caperton makes clear,
most states—like Michigan—have adopted judicial conduct standards comparable to
Canon 1 of the 2007 ABA Model Code of Judicial Conduct and the accompanying rules.
But these standards are not equivalent to enforceable recusal rules, let alone recusal rules
that may be raised by a party and enforced against an individual justice’s will. Indeed,
although Chief Justice Kelly lists various states that employ an “appearance of
impropriety” standard, the standard appears in their judicial canons, as her statement
candidly shows; the standard does not appear in their recusal rules. Justice Hathaway
also relies on Caperton, but this Court has not adopted a rule reciting the ABA Model
Code’s test for appearance of impropriety cited in Caperton. Further, contrary to Justice
Hathaway’s implications, I do not conclude that the recusal standard employed by many
states and apparently approved by Caperton—”the judge’s impartiality might reasonably
be questioned”—is unconstitutional. Rather, I contest the unprecedented, broad wording
of the new Michigan standard combined with the new power of a majority of this Court to
vote to remove a fellow coequal justice from a particular case in the absence of any
procedural safeguards. As I explain further below, it is this combination of factors that I
believe threatens the due process rights of Michigan justices and litigants appearing
before this Court.
                                                                                         17

the outset of our rule.

       Moreover, as noted, an “appearance of impropriety” standard for recusal is
particularly problematic in light of the majority’s decision that it is empowered to
disqualify other justices from hearing a case. The Chief Justice concedes that allowing
one justice to overrule another justice’s decision on a recusal motion violates the maxim
that each justice has equal power and authority with respect to his colleagues. Yet she
now justifies this seizure of power on the mere ground that, in essence, the majority rules.
That is no explanation for the Court’s purported authority in this matter. “Appearance of
impropriety” is too nebulous a standard to justify removal of a justice from a case against
his will. Certainly Canon 2 of the Michigan Code of Judicial Conduct—like Canon 1 of
the ABA Model Code and the comparable standards of many states—requires judges to
“avoid all impropriety and appearance of impropriety.” But we have no sound reason to
incorporate this broad, aspirational standard into our binding, enumerated requirements
for recusal. Because the standard is difficult to definitively apply, permitting a majority
of justices to disqualify a peer on this basis creates a conspicuous threat to the due
process rights of each member of this Court.

        A written explanation by the voting justices of why they did or did not vote to
disqualify a challenged justice from hearing a case does not solve this problem. Indeed, a
written statement is meaningless. It does not afford due process when based on such a
vague standard. The rule effectively gives a majority of justices carte blanche to
disqualify their colleagues simply by articulating its impressions of why a challenged
justice’s participation appeared improper, without regard to the existence of the
traditional, more objective grounds for recusal such as personal bias, involvement in the
case, or economic interest in the case. This liberal procedure does not merely offend the
removed justice’s due process rights. As noted in my dissent from the adoption of our
new rule, the rule nullifies the electoral choice of the people of Michigan by permitting
the Court to decide which justices may participate in a given case. Moreover, particularly
when, as in this case, one party seeks the recusal of justices and the other party opposes
recusal, the procedure threatens the right of the opposing party to have his cause heard by
an impartial court.

       Recent developments in other states echo my previously stated concerns about the
national push among a handful of well-funded interconnected advocacy groups to chill
campaign speech in an effort to hamper judicial elections. See the order amending MCR
2.003, 485 Mich ___ (issued November 25, 2009, amended December 3, 2009, ADM
2009-4) (Corrigan, J., dissenting). In particular, the Wisconsin Supreme Court recently
rejected new rules that would require a judge to recuse himself even if he received a
lawful campaign contribution from a party. Commenting on the effort to “‘deprive
citizens who lawfully contribute to judicial campaigns . . . of access to the judges they
help elect,’” Wisconsin Supreme Court Justice David Prosser, Jr., warned: “‘I think the
national recusal movement is an effort to so gum up [judicial] elections that we are
                                                                                          18

almost forced into an alternative, such as appointing judges.’” Koppel, States Weigh
Judicial Recusals, Wall St J, January 26, 2010, at A8.

       With general regard to Chief Justice Kelly’s assertions, I concur fully in the
responses offered by Justice Young. Indeed, it is not I who abdicate the duty to sit by
declining to participate in the Court’s decision under MCR 2.003. Quite to the contrary,
the new formulation of MCR 2.003 threatens a justice’s duty to sit in cases in which
recusal would not be required by any other state in the nation. I have properly discharged
my duty to sit by denying the motion for recusal directed at me; I stand ready to hear the
controversy before us. I have also properly exercised the duties of my office—which are
rooted in my oath to uphold the Constitution of the United States and the Michigan
Constitution, Const 1963, art 11, § 1—by declining to participate in the majority’s
decision with regard to the motion for recusal directed at Justice Markman because I
believe the new provisions of MCR 2.003 are unconstitutional.

       For the foregoing reasons, I do not participate in the majority’s decisions under the
unconstitutional new version of MCR 2.003. I further continue to urge my colleagues to
rethink their adherence to this new rule in its current form.

       YOUNG, J. (not participating).

        I do not participate in the order or the Court’s decision-making under the new rule
for the reasons stated in my November 25, 2009 dissent from the rule’s promulgation. 37

       As I have previously stated, MCR 2.003 as amended is unconstitutional. 38 That
the majority has refused to consider the significant constitutional issues arising under the
amended rule that I have raised is especially troubling. In particular, on November 19,
2009, before the order amending MCR 2.003 entered, I circulated to the Court a series of
substantive amendments that addressed the basic due process and First Amendment
problems with the rule the majority nevertheless adopted on November 25, 2009. 39 In the

37
   See 485 Mich civ, cxxxii (2009) (Young, J., dissenting). At the time I denied the
motion to disqualify, I issued a statement explaining my reasons for doing so. A copy of
that statement is attached as Exhibit A.
38
   The Chief Justice claims that I “fail to cite any controlling authority for [my] assertion
that MCR 2.003, as amended, or the ‘appearance of impropriety’ standard, generally, is
unconstitutional.” Ante at __ n 6. I invite the Chief Justice to reread (or read) my
dissenting statement to the order amending MCR 2.003, entered on November 25, 2009,
to become acquainted with the arguments that I marshal on behalf of my position on the
rule’s unconstitutionality. A copy of that order is attached as Exhibit B.
39
  A copy of the amendments I proposed that are currently before the Court, but have
been passed twice from consideration at public conferences, is attached as Exhibit C.
                                                                                           19

more than four months since I proposed them, not only have the members of the majority
failed to provide me with any written or oral feedback on these amendments, they have
also refused to consider these amendments at our December 10, 2009, and January 27,
2010, public administrative conferences, even though they were scheduled to be
considered. That the majority is willing to review their fellow justices’ recusal decisions
under the new rule in the face of its serious constitutional problems indicates an appalling
indifference to the role of this Court in enforcing the rule of law.

       RESPONSE TO CHIEF JUSTICE KELLY AND JUSTICE HATHAWAY

       Chief Justice Kelly’s and Justice Hathaway’s statements explaining the duty to sit
and defending the constitutionality of MCR 2.003 contain little more than a pastiche of
legal non sequiturs. As such, I will address the various points they raise seriatim.

       (1) I am heartened to discover that the Chief Justice now recognizes the duty to sit.
She is correct in stating that “‘it is necessary that judges participate in cases in which
recusal is not required.’” 40 However, because every justice takes an oath of office to
uphold the constitutions of the United States and the state of Michigan, 41 a justice is also
obligated to respect his or her constitutionally limited authority when deciding a case.
Accordingly, just as a justice has the responsibility to raise sua sponte the issues of
standing or subject matter jurisdiction in order to determine whether deciding the merits
of a case exceeds the justice’s constitutional authority, a justice has a similar
responsibility not to rule on motions that require an action beyond the scope of that
constitutional authority.

       (2) Moreover, it is not clear that the duty to sit even applies to collateral motions
within cases before this Court. The duty to sit requires a justice to “participate in cases in
which recusal is not required.” 42 Even though I do not participate in this Court’s review
of the motions to disqualify, I continue to participate in the defendant’s underlying appeal


These proposed amendments are substantially similar to the proposed amendments that I
circulated on November 19, 2009, but also incorporate some suggestions from Justice
Markman that I received in the interim.
40
  Ante at __, quoting Adair v Michigan, 474 Mich 1027, 1030 (2006) (statement of
Taylor, C.J., and Markman, J.).
41
   Const 1963, art 11, § 1 requires “[a]ll officers, legislative, executive and judicial,
before entering upon the duties of their respective offices [to] take and subscribe the
following oath or affirmation: I do solemnly swear (or affirm) that I will support the
Constitution of the United States and the constitution of this state . . . .”
42
  Adair, 474 Mich at 1030 (statement of Taylor, C.J., and Markman, J.) (emphasis
added).
                                                                                         20

in this case because my recusal is not required. 43 For this independent reason, my
nonparticipation in the decision of this motion is not a violation of my duty to sit.

       (3) The Chief Justice generously notes that I am entitled to my view on the
constitutionality of MCR 2.003. While I am grateful that she concedes as much, the
citizens of this state deserve more from its senior court. It is not enough, as the Chief
Justice asserts, to claim that all that this Court does is “clothed in a presumption of
constitutionality.” Were that the case, there would be no need to consider any
constitutional challenge to this Court’s rules. I have not challenged the constitutionality
of MCR 2.003 lightly. Even if my views are repudiated by this Court, the constitutional
challenges I have raised deserve serious consideration by this Court. Thus far, the
majority has studiously avoided consideration of these challenges, either before adopting
this modified disqualification rule or afterward.

       (4) Throughout their defenses of MCR 2.003, the Chief Justice and Justice
Hathaway conflate two of the new substantive requirements under MCR 2.003 and in
doing so also misleadingly suggest that the “appearance of impropriety” standard is one
that the vast majority of states have adopted. The previous substantive requirements
requiring a judge’s recusal under the former version of MCR 2.003 mandated recusal
whenever “the judge cannot impartially hear a case . . . . 44 This was an actual bias
standard. 45 The former rule then provided a nonexclusive list of proxies for actual bias
requiring recusal, as well as safe harbors that allowed a judge’s participation in a case
absent a different reason for disqualification.

         The new substantive requirements mandate recusal when

         [t]he judge, based on objective and reasonable perceptions, has either (i) a
         serious risk of actual bias impacting the due process rights of a party as
         enunciated in Caperton v [A T] Massey [Coal Co, Inc], [556] US ___; 129
         S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the
         appearance of impropriety standard set forth in Canon 2 of the Michigan
         Code of Judicial Conduct.[46]

I need not rehash the persuasive evidence that Justice Corrigan has marshaled in her
statement showing that Michigan is now unique in expressly adopting an “appearance of
impropriety” standard as a basis for disqualification. To put the matter bluntly, there is

43
     A copy of my statement denying the motion to disqualify is attached as Exhibit A.
44
     Former MCR 2.003(B). This standard also appeared in GCR 1963, 912.2(a).
45
     Cain v Dep’t of Corrections, 451 Mich 470, 495 (1996).
46
     MCR 2.003(C)(1)(b) (emphasis added).
                                                                                          21

no other disqualification rule in the country like the one we have adopted.

       However, in defending the “appearance of impropriety” standard, the Chief Justice
and Justice Hathaway also fail to recognize an important distinction between the two
parts of MCR 2.003(C)(1)(b). The first part of this subrule recognizes the requirements
of due process as articulated in Caperton and applies only when a judge’s conduct affects
the due process rights of a party in the context of a particular case. The second part of
this subrule applies all of Canon 2 of the Michigan Code of Judicial Conduct without
requiring that the judge’s violation of Canon 2 be relevant to a party’s rights in a
particular case. 47 Justice Hathaway claims that Caperton articulates a test for an
“appearance of impropriety” centered on “‘whether the conduct would create in
reasonable minds a perception that the judge’s ability to carry out judicial
responsibilities with integrity, impartiality and competence is impaired.’” 48 However,
the “appearance of impropriety” standard contained in MCR 2.003(C)(1)(b)(ii) comes
from the Michigan Code of Judicial Conduct, not Caperton, and, more importantly, does
not contain any limiting language. MCR 2.003(C)(1)(b)(ii) is a startling and supremely
stupid policy that could have no conceivable purpose other than to permit a majority of
this Court to remove a fellow justice for any violation of Canon 2, however unrelated to a
justice’s partiality or impartiality in an underlying case. Rather than disclaim such
intention, the Chief Justice confirms that “grounds for recusal should not be narrowly
confined to the case before the court in order for a justice to be removed from the case.” 49
This admission, that a justice should be removed for reasons having nothing to do with
his or her ability to rule in a particular case, speaks volumes and shows that the
majority’s intention in promulgating the new “appearance of impropriety” standard is to
give the majority a large hammer to wield in its arbitrary use of power.

       The Chief Justice’s conflation of the distinction between the two clauses of MCR
2.003(C)(1)(b) renders misleading her claim that “federal district courts have rejected
First Amendment constitutional challenges to a recusal standard that is synonymous with

47
   For example, Canon 2(A) requires a judge to “avoid all impropriety and appearance of
impropriety.” Also, contained within Canon 2(B) is the requirement that a judge “respect
and observe the law.” Accordingly, under the text of this new rule, a judge who received
a traffic ticket for driving faster than the posted speed limit, and therefore who knowingly
failed to “observe” the law, can be disqualified from a case for failing to meet the
“appearance of impropriety” standard, even if this conduct has no reasonable relevance
to whether the judge can impartially hear cases before him. This conclusion is borne out
by the nature and relation of the two clauses. The first is limited to the parties’ due
process rights; the second is not.
48
   Ante at __, quoting Caperton, 129 S Ct at 2266 (emphasis in Justice Hathaway’s
statement).
49
     Ante at __ n 15.
                                                                                            22

the ‘appearance of impropriety’ standard . . . .” 50 She cites five federal district court
decisions that she purports accepted “such recusal rules” as “narrowly tailored to meet
[the states’] interest and . . . neither overbroad nor vague.” The five cases that the Chief
Justice cites, however, involved recusal rules that are substantially narrower than
Michigan’s unique “appearance of impropriety” standard. They all relied on a standard
requiring recusal when a judge’s “impartiality might reasonably be questioned.” There is
a significant difference between that standard and the “appearance of impropriety”
standard the majority has now engrafted on the old rule. The former has a longstanding
provenance in the disqualification jurisprudence of many jurisdictions; the latter, none.

       In Alaska Right to Life Political Action Comm v Feldman, for example, the United
States District Court for the District of Alaska upheld the constitutionality of Alaska’s
judicial canon requiring recusal when a judge’s “impartiality might reasonably be
questioned”:

                In summary, “[w]hen a judge may have a particular bias or
         prejudice, the recusal provisions require the judge to remove himself or
         herself from the case.” More specifically, “a judge shall disqualify himself
         or herself in a proceeding in which the judge’s impartiality might
         reasonably be questioned . . . .” Without further analysis, the Court
         concludes this canon is narrowly tailored to serve a compelling State
         interest, i.e., it offers assurance to parties that the judge will apply the law
         in the same manner that would be applied to any other litigant.
         Consequently, it survives Plaintiffs’ constitutional challenge.[51]

The remaining four cases that the Chief Justice cites apply similar standards that
specifically involve a judge’s impartiality in a given case. 52 As stated, the “appearance

50
     Ante at __.
51
  Alaska Right to Life Political Action Comm v Feldman, 380 F Supp 2d 1080, 1084 (D
Alas, 2005) (citations omitted).
52
   North Dakota Family Alliance, Inc v Bader, 361 F Supp 2d 1021, 1043 (D ND, 2005)
(interpreting ND Code of Judicial Conduct, Canon 3(E)(1), which requires a judge to
“disqualify himself or herself in a proceeding in which the judge’s impartiality might
reasonably be questioned”); Family Trust Foundation of Kentucky, Inc v Wolnitzek, 345 F
Supp 2d 672, 705-711 (ED Ky, 2004) (interpreting Ky Sup Ct R 4.300, Ky Code of
Judicial Conduct, Canon 3(E)(1), which requires a judge to disqualify “himself or herself
in a proceeding in which the judge’s impartiality might reasonably be questioned”);
Indiana Right to Life, Inc v Shepard, 463 F Supp 2d 879, 886-887 (ND Ind, 2006)
(interpreting former Ind Code of Judicial Conduct, Canon 3(E)(1), which required a judge
to “disqualify himself or herself in a proceeding in which the judge’s impartiality might
reasonably be questioned”); Bauer v Shepard, 634 F Supp 2d 912, 948-950 (ND Ind,
                                                                                           23

of impropriety” standard contains no such limitation to a particular pending case. It has
never been incorporated into a disqualification rule as has the “impartiality might
reasonably be questioned” standard. If the goal of the new, supposedly “objective”
standard is simply to prevent the risk of bias in the context of a particular case, then the
first clause of the subrule suffices. However, if the “appearance of impropriety” clause is
not to be rendered nugatory, it must apply generally to a judge’s conduct, no matter how
unrelated to the case at hand. I do not see how the majority can deny that the second
clause must be broader than the first. If the members of the majority do, what is their
justification for permitting the disqualification of a justice for a violation of Canon 2 that
has nothing to do with a particular case? The breadth of this second clause alone should
trouble the majority. Unfortunately, majorities rarely conceive or concede that they could
be capable of abuse of power.

       The prevention of an elected official from performing his or her duties is a very
serious matter, and thus a rule allowing removal of a judge from a particular case should
be clear and must be narrowly tailored to the circumstances of a particular case. Any
other standard, including an “appearance of impropriety” standard encompassing all
conduct, however unrelated to the case at hand, is impermissibly broad and interferes
with the due process rights that inhere in the office. The lack of case-specific limitations
of the “appearance of impropriety” clause illustrates the unseemly haste with which the
majority was driven to amend not only the procedures for this Court’s determination of
disqualification motions but also the substantive standards by which such motions are
decided. 53 Because the disqualification of a judge implicates the electorate’s right to seat

2009) (interpreting Ind Code of Judicial Conduct, Canon 2, Rule 2.11(A)(5), which
requires a judge’s recusal when that judge has made a public statement (other than one in
a court proceeding, judicial decision, or opinion) that “commits or appears to commit the
judge to reach a particular result or rule in a particular way in the proceeding or
controversy”).
53
   Although disqualification has been an issue before the Court for some time, the
“appearance of impropriety” standard is a much more recent development. This new
standard was not incorporated into any of the three proposals that this Court published for
comment in March 2009. See Proposals Regarding Procedure for Disqualification of
Supreme Court Justices, 483 Mich 1205 (2009). Justice Hathaway first proposed the
“appearance of impropriety” standard on October 22, 2009, two weeks prior to the
November 5, 2009, administrative conference at which the Court voted on adopting the
new standard. Moreover, I shared the following exchange with Justice Hathaway at that
conference when I inquired about the nature of her proposed standard:
             Justice Hathaway: If there is an appearance of impropriety, then you
       cannot sit on a case.
             Justice Young: And from what perspective is the appearance of
       impropriety? Is it a subjective standard? Is it an objective standard?
                                                                                         24

a court of its choosing, the standards for disqualification must be exceedingly clear. The
“appearance of impropriety” standard is anything but.

       In conflating the general “appearance of impropriety” standard that the majority
has promulgated with the case-specific standard that other states and Caperton require,
the Chief Justice elides the important First Amendment issues uniquely involved in the
context of Michigan’s court rule. There are different issues involved when a judge’s
speech implicates a party’s due process rights to have a neutral arbiter than when a
judge’s speech implicates a nonconstitutional “appearance of impropriety” court rule. 54
This is particularly true in light of the decision of the people of Michigan to retain their
sovereign right to elect judges.

       In every written constitution since 1850, the people of Michigan have retained
 their sovereign right to elect judges rather than surrender that right to some other
 process. Accordingly, judicial aspirants in Michigan campaign for judicial office. In
 campaigning, they will engage in political speech that is clearly protected under the
 First Amendment. The protection of speech guaranteed under the First Amendment is
 especially important within the context of political campaigns. James Madison, drafter
 of the First Amendment, wrote:

               The value and efficacy of [the right of elections] depends on the
       knowledge of the comparative merits and demerits of the candidates for public
       trust, and on the equal freedom, consequently, of examining and discussing
       these merits and demerits of the candidates respectively.[55]

Thus, any restrictions on campaign speech not only infringe on a candidate’s right to
speak, but also infringe on the public’s right to vote intelligently on their candidates.


              Justice Hathaway: I haven’t thought through all that to be honest
       with you, to answer you here.
              Justice Young: But we’re going to vote on this today.
              Justice Hathaway: Then let’s vote.
In light of this exchange, I will leave the reader to determine the correctness of Chief
Justice Kelly’s claim that “criticism of the amendments of MCR 2.003 as being ‘hast[y]’
is off the mark.” Ante at __.
54
   I believe no one in the majority that promulgated the “appearance of impropriety”
standard, including the Chief Justice, has urged that it was of constitutional dimension.
55
   James Madison, Report on the Virginia Resolutions, available at <http://press-
pubs.uchicago.edu/founders/documents/amendI_speechs24.html> (accessed March 25,
2010).
                                                                                         25

       The importance of citizens’ decisions regarding whom to entrust with public office
deserves no less than a robust public discussion of issues by candidates seeking their
votes. The amended court rule frustrates this kind of political discussion between
judicial candidates and voters and penalizes a judicial candidate for trying to do so.
The amended court rule expressly contemplates that campaign speech protected under the
First Amendment will nevertheless cause a duly elected judge to be disqualified from
hearing a case. This is so because the new rule establishes that a judge’s political speech
is subject to an “appearance of impropriety” limitation that the Chief Justice recognizes
extends beyond the due process requirements that Caperton mandated.

        Thus, even if the challenged political speech in no way implicated actual bias
against a party (or any other constitutional right of that party), an elected justice would
still be liable to be disqualified if his or her campaign comments were later determined
to have created an appearance of impropriety. It is not hard to contemplate campaign
speech that might offend someone’s sensibilities and later be considered “improper”
under the new rule’s standard.

       Moreover, the mere threat of future disqualification produces a chilling effect on
protected speech. The United States Supreme Court’s decision in Republican Party of
Minnesota v White struck down the Minnesota Supreme Court’s rule forbidding an
incumbent judge or candidate for judicial office from “‘announc[ing] his or her views on
disputed legal or political issues’” during an election campaign. 56 While the Minnesota
Supreme Court’s restriction on campaign speech was more expressly content-based than
the restrictions promulgated by the new rule, the new majority here is attempting to
achieve indirectly what the United States Supreme Court declared in White that a
court could not do directly: stifle protected judicial campaign speech. The new
“appearance of impropriety” standard is so broad and vague that judges and judicial
candidates will be forced to self-limit their campaign speech so that, once they are
elected, they can actually exercise the duties of the office they have sought. Thus, this
rule is facially unconstitutional because it expressly allows a jurist’s First
Amendment right to free speech to be subordinated to a nonconstitutional standard.
The new majority is untroubled by this obvious abridgement of First Amendment rights
that their new rule causes. And the abridgment is even more invidious because the
appearance of impropriety is not tied to a violation of a party’s constitutional rights.

       (5) The Chief Justice also questions whether the removal of a judge from a case
against his or her will for any speech protected under the First Amendment constitutes a
sufficient injury in fact for standing purposes. 57 Such a claim denigrates the judicial
offices that Michigan citizens have entrusted to their judges. The disqualification of a

56
     Republican Party of Minnesota v White, 536 US 765, 768 (2002) (citation omitted).
57
     Ante at __ n 9.
                                                                                             26

judge from exercising his or her judicial office in a particular case for having asserted
protected speech is a cognizable injury in fact sufficient to establish standing. Indeed,
though it did not decide the issue, the United States Court of Appeals for the Eleventh
Circuit has recognized as “non-frivolous” the argument that “forcing a judge to disqualify
himself . . . is a penalty in itself.” 58 It is hard to imagine why removing a judge from a
case would not support standing to challenge the legitimacy of the removal. It would be
passing strange to contemplate any contrary rule under which the very officeholder being
prevented from exercising the duties of office lacked standing to challenge the
prevention. Chief Justice Kelly offers no rationale or authority for her assertion to the
contrary. There is an obvious reason why she has not.

        (6) The Chief Justice also states, in an entirely conclusory fashion and without
citing any authority: “The rule does not deny any rights to a justice who is recused
against his or her will.” She fails to address the serious due process concerns that I
expressed before the adoption of the amendments. Justice Hathaway responds to my
arguments by calling into question my commitment to litigants’ due process rights,
noting that “concerns about a justice’s personal due process rights during the
disqualification procedure [are] misplaced” and suggesting that I “believe that the rights
of jurists are superior to the rights of the public . . . .” 59 This is entirely untrue. The due
process rights of litigants must be respected. However, that need not and may not be
done by creating a process that itself is lacking in due process rights. Justice Hathaway’s
disregard of these basic due process rights speaks volumes. While the new rule protects
the due process rights of litigants, it need not in Justice Hathaway’s calculation provide
judges with basic guarantees of due process when resolving disqualification motions.

        Moreover, the public has an important interest in ensuring that their chosen
judicial officers are treated fairly during the disqualification process, which is far from
being a concern solely about justices’ due process rights. The removal of a sitting justice
against his or her will is a serious matter trenching upon the right to execute the duties of
office to which the justice was elected as well as an infringement on the right of electors
who placed the justice in office. Before the amendment of MCR 2.003, only a decision
of the United States Supreme Court could reverse a Michigan justice’s determination
regarding a motion for recusal. In interposing itself in this decision as an appellate body,
this Court must afford the targeted justice no fewer rights than he or she would enjoy in
such an appeal to the United States Supreme Court of a denial of a motion for recusal.
These include the right to have the matter heard by an impartial arbiter, the right to
counsel, the right to have the issues framed, and the right to present arguments.

         Thus, I have proposed that any appeal of a justice’s denial of a motion for recusal

58
     Florida Family Policy Council v Freeman, 561 F3d 1246, 1255 (CA 11, 2009).
59
     Ante at __.
                                                                                               27

must be limited to the grounds stated in the motion and that the justice must be allowed to
retain counsel in the matter and submit a brief in response to the motion. If due process
means anything—particularly in the disqualification setting, where this issue is pivotal—
a targeted justice is most assuredly entitled to an impartial arbiter. 60 When personal and
political biases could affect the decision-making of members of this Court in the new
disqualification appeal process, I cannot imagine that due process demands less than the
right to challenge such potential biases of the decision-makers. Accordingly, I proposed
amendments that would ensure that this cardinal due process right is preserved, so that a
targeted justice facing an appellate review of his or her denial of the recusal motion can
challenge the potential biases of other members of this Court. The members of the
majority are loathe to permit such a bias challenge, but not because they fail to recognize
that there are serious political and personal antagonisms among this Court’s members.

       Similarly, due process also demands an adequate opportunity for a challenged
justice to be heard. 61 Sometimes, this will also entail an evidentiary hearing. I have
therefore proposed a procedure for this Court taking evidence. No justice in the majority
has explained why any of the due process rights enjoyed before the new rule was
promulgated have now lost their constitutional status. I welcome any effort by the
majority to justify why these due process rights have now been banished by the Michigan
Supreme Court.

        (7) The Chief Justice claims as “inapposite” my previous citation of provisions in
the state constitution that limit the ability to remove a justice from office. 62 It is true, as I
have noted, that these constitutional provisions only refer to removal of a justice from all
cases, not from a particular case. However, as I explained in my dissent from the
adoption of amended MCR 2.003, there is no provision in the Michigan Constitution that
explicitly allows a majority vote of this Court to overturn the elective will of the People
and remove a justice from an individual case, nor is there any language that would even
implicitly provide such authority. The Chief Justice offers no constitutional provision to
refute this claim, only explaining that “[a] motion for the recusal of a justice is a
‘controversy’ like others that come before the Court.” 63 Clearly, there are limits even to
this Court’s adjudicative authority. The Chief Justice does not, I hope, suggest that this
Court has the constitutional authority to adjudicate any “controversy.” Moreover, as I
have explained at length here and in my original dissenting statement, the removal of a

60
  “A hearing before an unbiased and impartial decisionmaker is a basic requirement of
due process.” Crampton v Dep’t of State, 395 Mich 347, 351 (1975).
61
  “The fundamental requisite of due process of law is the opportunity to be heard.” Dow
v Michigan, 396 Mich 192, 205 (1976) (quotation marks and citations omitted).
62
     Ante at __. See also 485 Mich civ, cxxxix-cxlii (2009) (Young, J., dissenting).
63
     Ante at __.
                                                                                          28

fellow justice from a case against the will of the electorate—potentially for reasons that
have nothing to do with the justice’s impartiality in a particular case—is far from an
ordinary “controversy.”

        (8) Finally, the Chief Justice claims that my decision not to participate is
tantamount to “announc[ing] by declarative fiat that the Court’s action is null and
void.” 64 I have never claimed that the Court’s action is ineffective. Instead, I merely
dissent from the justifications, such as they are, for this Court’s amended disqualification
procedures because I reach a different constitutional conclusion: that the disqualification
procedures fail to protect due process rights guaranteed under the United States
Constitution. The Chief Justice claims that my decision not to participate in
disqualification proceedings is inconsistent with my participation in cases involving
certified questions arising under MCR 7.305(B). She quotes with approval my recent
statement in a certified question case:

                 I continue to adhere to my stated position in In re Certified Question
         (Wayne Co v Philip Morris Inc), 622 NW2d 518 (Mich, 2001), that this
         Court lacks the authority under state law to answer certified questions.
         However, this position has failed to carry the day. As the final arbiter of
         state law, this Court has concluded that it has the authority to answer
         certified questions.[65]

The Chief Justice and I, therefore, agree that this Court’s declarations of state law are
final. Nevertheless, this Court’s final authority does not extend to questions of federal
constitutional law. As I have explained, both above and in previous statements, the
amendments to MCR 2.003 violate the protections of due process guaranteed by the
United States Constitution. This Court cannot abrogate these protections, and the




64
     Ante at __.
65
  In re Certified Question (Waeschle v Oakland Co Med Examiner), 485 Mich ___
(Docket No. 140263, entered March 12, 2010) (Young, J., dissenting) (citation omitted).
                                                                                                               29

majority’s conclusion that the amendments to MCR 2.003 satisfy the United States
Constitution does not authoritatively make it so. Accordingly, I refuse to participate in
procedures that violate the protections of the United States Constitution.

                                          CONCLUSION

       I do not participate in the entry of the order or the Court’s decision-making under
the new disqualification rule. I believe that rule to have serious constitutional flaws.
Moreover, my decision not to participate does not violate the duty to sit because deciding
whether a fellow justice must be disqualified from hearing a particular case under the
current court rule is inconsistent with my judicial duty to uphold the due process
requirements of the United States Constitution.

      CORRIGAN, J., joins the statement of YOUNG, 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.
                         March 31, 2010                      _________________________________________
       0331                                                                  Clerk
