                             STATE OF MICHIGAN

                                   SUPREME COURT




PEOPLE OF THE STATE OF MICHIGAN,
          Plaintiff-Appellee,

v                                                        No. 138577


ALEXANDER ACEVAL,
           Defendant-Appellant.
____________________________________



              Statement of Justice Markman Regarding Defendant’s Motion
                             to Disqualify Justice Hathaway

                                      April 22, 2010

       MARKMAN, J. I write separately only to observe that this Court adheres to a
different procedure in the present motion for disqualification than it did with regard to the
recent motion for disqualification in Pellegrino v AMPCO, #137111, and that this change
in procedure has significant consequences for the new disqualification process. In
Pellegrino, this Court allowed other justices an immediate opportunity to respond to my
statement to deny the disqualification motion directed toward me. In the instant case,
justices are not to be afforded a similar opportunity until after, and unless, the attorney
who initially moved the disqualification motion against Justice Hathaway has requested
that her decision be reviewed by the full court. 1

       1
         In justifying this disparity, Justice HATHAWAY finds it significant that counsel in
Pellegrino expressly moved for full court review of my disqualification decision.
However, counsel’s motion preceded even my response to his original motion for
disqualification, and therefore was untimely under the new court rules. Counsel cannot
unilaterally alter the rules of this Court. That is, although these rules clearly contemplate
       Thus, one procedure entitles justices to review the disqualification decisions of
other justices, while the other procedure allows such review only if sought by the
attorney. Although I do not personally favor any procedure that involves justices in the
review of the disqualification decisions of other justices, if there is to be such a
procedure, I am troubled that it can apparently only be invoked at the request of an
attorney, and not also at the request of another justice. Such a procedure regrettably
seems of a kind with this Court’s rejection of my proposed amendment to the new rules
allowing justices on their own motion to raise conflict of interests and ‘appearance of
impropriety’ concerns.

        In short, I do not believe that attorneys should be granted a monopoly of authority
to invoke full court review of the disqualification decisions of individual justices. I see
no reason why justices themselves should not have some equivalent role in this process.
It was my understanding of the new disqualification rules that their purpose was to
strengthen the ability of this Court to avoid conflicts of interest and ‘appearances of
impropriety’ by involving all the justices in what until then had been the determination of
a single justice. If that is so, there is no obvious reason why full court review should be
contingent upon whether the attorney himself has decided to seek review. It is hard to
fathom why justices, now having been authorized to police the disqualification decisions
of other justices, should only be allowed to do so where an attorney has chosen to trigger
this process. What if another justice questions a justice’s participation under our new
rules? Is there nothing that justice can do to secure full court review, unless ‘empowered’
to act by an interested attorney? If a more active oversight role by justices is warranted
as to the disqualification decisions of other justices, why is this now only true where we


a motion for full court review only after the targeted justice has denied a disqualification
motion, this Court did not wait for such a motion before responding to my statement. By
contrast, the absence of a timely motion seeking full court review in the instant case now
dictates that such review may not occur at all unless there is a motion to that effect by the
defendant. Justice HATHAWAY also apparently finds it significant that, at the time the
motion in Pellegrino was denied, there were no time limitations in the rule, but now there
are. However, that counsel now knows exactly how much time he has within which to
request full court review does nothing to alter the fact that both before and after the new
time limitations, the rules only contemplated full court review after the targeted justice
had denied the disqualification motion. To be clear, I had no objections to this Court
reviewing my disqualification decision in Pellegrino in the manner it did-- at least, apart
from my fundamental objection to the new disqualification rules themselves. However,
given that this was the approach this Court utilized in Pellegrino, I would not now adopt
a different approach in the instant case.
                                             2
have the authorization of an attorney? Why does the key to full court review belong only
to the attorney and not also to other justices? 2




       2
         Relevant to the instant procedure is that the motion for disqualification here was
filed on October 16, 2009. Now, more than six months later, a denial and an
accompanying statement have been issued, and yet the process may still not be close to
an end. Defense counsel will now be entitled to respond to the targeted justice, the
targeted justice will then be allowed to respond to defense counsel, the other six justices
will then assess these ongoing exchanges between the lawyer and the justice, these other
justices are then obligated to respond with their own statements explaining their decisions
as to whether the targeted justice can participate in the case, and then finally the targeted
justice will be entitled to a responsive or dissenting statement if he or she disagrees with
the court majority. Thus, an entire term of this Court will likely have passed and there
will have been no resolution of the dispute that has brought this criminal appeal to the
Michigan Supreme Court in the first place. Not only then does the instant procedure
improperly confer a monopoly upon lawyers in triggering full Court review of
disqualification decisions, but it extends the disqualification process to unreasonable
lengths to the detriment of justice. The tail now wags the dog where a disqualification
motion has been made, and it is quite certain that some number of such motions will be
incentivized in order to delay rather than to facilitate justice.
                                             3
