Adair v. State, Dept. of Educ.
| Decision Date | 31 January 2006 |
| Docket Number | No. 129467.,129467. |
| Citation | 709 N.W.2d 567,474 Mich. 1027 |
| Parties | Daniel ADAIR, et al., Plaintiffs-Appellants, v. STATE of Michigan, DEPARTMENT OF EDUCATION, Department of Management and Budget, and Treasurer of the State of Michigan, Defendants-Appellees. |
| Court | Michigan Supreme Court |
Plaintiffs have moved for our recusal from participation in this case on the basis of our spouses' employment with the office of the Attorney General and the "appearance of impropriety" assertedly raised by such employment.1
Having carefully considered this motion, we deny the motion for the following reasons:2
(1) The asserted basis for recusal in this case, the employment of our spouses by the Attorney General's office, has never before been understood in Michigan to constitute a basis for recusal.
(2) Specific court rules in Michigan that permit us to participate in this case are fully consistent with the rules and practices of the United States Supreme Court, the federal judiciary, and virtually every other state of the Union.
(3) Where, as here, specific court rules address the asserted basis for recusal, and those rules make clear that recusal is not required, a vague allegation of an "appearance of impropriety" cannot prevail over those rules.
(4) It would be an ethical "snare" if judges who complied fully with court rules, as well as with other rules of law such as those pertaining to campaign contributions, were subsequently required to recuse themselves from cases despite their compliance with the rules and laws.
(5) The recusal policy asserted by plaintiffs—that no judge can hear any case in which a party is represented by a law firm or a prosecutor's office in which a relative of that judge is employed, even if that relative has no personal involvement in the case and stands to gain nothing materially by its outcome— constitutes an unfair and unwise policy that would seriously inhibit employment opportunities for any judge's spouse or relative who is an attorney.3
(6) Moreover, the "exception" that plaintiffs would allow to this rule—that a judge may hear a case only if all attorneys agreed to permit his or her participation—would politicize and introduce gamesmanship into the judicial process.
(7) While the rule proposed by plaintiffs is unwarranted even with regard to spouses and relatives who are employed by private law firms, it is even more draconian with regard to spouses and relatives who are employed by prosecutor's offices whose financial viability is unaffected by whether they prevail in a given lawsuit and in which employee compensation is similarly unaffected.
(8) 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.
(9) If the fact of a working spouse or relative is viewed by some as sufficient to cast an "appearance of impropriety" on a judge's work, despite court rules and historical practice to the contrary, and despite a history of honorable conduct on the part of such judges in recusing themselves from cases in which their spouses were genuinely involved or interested, such a judgment must come from the people in the course of the judicial selection process provided for by the Michigan Constitution.
MCR 2.003(B)(6) states that, with regard to a "judge's spouse, or a person within the third degree of relationship to either [the judge or the judge's spouse], or the spouse of such a person," a judge is disqualified where that relative:
(a) is a party to the proceeding, or an officer, director or trustee of a party;
(b) is acting as a lawyer in the proceeding;[4]
(c) is known by the judge to have more than a de minimis interest that could be substantially affected by the proceeding;5 [or]
(d) is to the judge's knowledge likely to be a material witness in the proceeding.
None of these circumstances obtains in the instant case with regard to our spouses.
MCR 2.003(B)(6) is consistent with the policy of the United States Supreme Court, which requires recusal in cases in which, with regard to a justice's spouse, or a person within the third degree of relationship to either the justice or the justice's spouse, or the spouse of such a person, "the litigation is in effect `his' or `her' [i.e., the relative's] case"; in which "the amount of the relative's compensation could be substantially affected by the outcome"; or in which "appearances on behalf of parties are made by firms in which our relatives are partners, unless we have received from the firm written assurance that income from Supreme Court litigation is, on a permanent basis, excluded from our relatives' partnership shares."6 Again, none of these circumstances obtains in the instant case with regard to our spouses.
MCR 2.003(B)(6) is consistent with the American Bar Association Model Code of Judicial Conduct, Canon 3, which requires recusal in any proceeding in which the judge's spouse, or a person within the third degree of relationship to either [the judge or the judge's spouse], or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; [or]
(iv) is to the judge's knowledge likely to be a material witness in the proceeding.
Once more, none of these circumstances obtains in the instant case with regard to our spouses.
MCR 2.003(B)(6) is consistent with the federal recusal statute, 28 USC 455(b)(5), which provides that a federal judge shall recuse himself from any proceeding in which
[h]e or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.[7]
Again, none of these circumstances obtains in the instant case with regard to our spouses.
MCR 2.003(B)(6) is consistent with the judicial conduct rules of Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming,8 all of which define the obligation to recuse in terms of whether a relative: (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; or (iv) is to the judge's knowledge likely to be a material witness in the proceeding.9
46 Am. Jur. 2d, Judges, § 140, pp. 237-238, provides a helpful summary of state law in this area:
The canons rules of virtually all states provide that a judge should disqualify himself if he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding. The question of whether a person within the required relationship to either the judge or his spouse, or the spouse of such person, is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding as in the case where the judge's relative is affiliated with a law firm representing one of the parties, depends on the particular facts of each case. The court may consider: (1) the nature of the attorney's interest in the law firm; (2) whether that interest could be affected by the outcome of the case, and if so, whether it could be substantially affected; and (3) the judge's knowledge regarding the attorney's interest in the firm. One primary concern is the financial remuneration which the judge's relative might receive. Closely related to direct financial remuneration are nonpecuniary benefits to the lawyer-relative's firm, such as enhanced reputation and increased good will that indirectly benefit the lawyer-relative. The fact that a lawyer in a proceeding is affiliated with the law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge, nor does the possibility of a large verdict returned in the case. However, courts hold that judges must disqualify themselves from presiding over a case if one or more of the lawyers on the case belongs to a law firm in which the judge's relative of the requisite degree of relationship is a partner.[10]
MCR 2.003(B)(6) is consistent with relevant judicial decisions on the subject of the instant motion. See 73 A.L.R. Fed. 879; 54 A.L.R. Fed. 855; State v. Harrell, 199 Wis.2d 654, 546 N.W.2d 115 (1996) (); Sensley v. Albritton, 385 F.3d 591 (C.A.5, 2004) (); Liberty Mut. Ins. Co. v. Wheelwright Trucking Co., Inc., 851 So.2d 466, 498 (Ala., 2002) (statement of Lyons, J.) (...
To continue reading
Request your trial
-
Henry v. Dow Chemical Co.
... ... analysis" requirement for class certification also applies to state class actions and whether this particular class of plaintiffs was properly ... St. John Hosp., 474 Mich. 1089, 1089-1090, 711 N.W.2d 351 (2006); Adair v. Michigan, 474 Mich. 1027, 1044-1051, 709 N.W.2d 567 (2006); Grievance ... ...
-
Grievance Administrator v. Fieger, Docket No. 127547.
... ... since its inception, that obtain within the overwhelming number of state judiciaries—as well as within the federal courts and the United States ... Chief Justice TAYLOR and Justice MARKMAN were received in Adair v. Michigan. 15 ... 477 Mich. 1241 ... ADM 2003-26 was ... Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ... ...
-
In re Haley, Docket No. 127453.
... ... sentenced the defendant to a $100 fine, $250 in court costs, a $40 state fee, an undetermined amount of restitution, and six months of probation ... " As observed by Chief Justice Taylor and Justice Markman in Adair, it would be an ethical "snare" for judges if they could be sanctioned ... ...
-
Caperton v. A.T. Massey Coal Co., Inc.
... ... [a] `forum selection' provision in a contract designates a particular state or court as the jurisdiction in which the parties will litigate ... 679 ... (Miss.2004) (quoting approvingly comment from Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 75 (Tex.Ct.App.1996), stating ... 451, 74 L.Ed. 1107 (1930); see also Harper v. Virginia Dept. of Taxn., 509 U.S. 86, 101, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). There ... to a judicial candidate's campaign was exhaustively addressed in Adair v. State, Department of Education, 474 Mich. 1027, 709 N.W.2d 567 (2006), ... ...