Pellegrino v. Ampco Sys. Parking

CourtSupreme Court of Michigan
Citation485 Mich. 1134,789 N.W.2d 777
Docket NumberDocket No. 137111.,COA No. 274743.
PartiesAnthony PELLEGRINO, Individually and as Personal Representative of the Estate of Shirley Ann Pellegrino, Plaintiff-Appellee, v. AMPCO SYSTEMS PARKING, Defendant-Appellant.
Decision Date31 March 2010

485 Mich. 1134
789 N.W.2d 777

Anthony PELLEGRINO, Individually and as Personal Representative of the Estate of Shirley Ann Pellegrino, Plaintiff-Appellee,
AMPCO SYSTEMS PARKING, Defendant-Appellant.

Docket No. 137111.
COA No. 274743.

Supreme Court of Michigan.

March 31, 2010.

485 Mich. 1134

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.

485 Mich. 1135

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

MARILYN J. 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.


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

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

789 N.W.2d 778

“duty to sit.” Under that duty, there is an obligation for a justice

485 Mich. 1136

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


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

485 Mich. 1137

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

789 N.W.2d 779

judge's freedom of speech and do not violate the First Amendment. 9

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

485 Mich. 1138

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 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

789 N.W.2d 780

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

485 Mich. 1139

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. 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

789 N.W.2d 781

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

485 Mich. 1140

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 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

485 Mich. 1141

of time. In the same way I will look forward to the dust settling from the case at bar, I will...

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7 cases
  • Brady v. Attorney Grievance Com'n
    • United States
    • Supreme Court of Michigan
    • June 23, 2010
    ...believe it is unconstitutional. They expressed their positions on this Court's disqualification rule, MCR 2.003, in Pellegrino v. Ampco, 485 Mich. 1134, 1150, 789 N.W.2d 777 (2010), where Justice Corrigan stated: "I do not participate in the majority's decisions under the unconstitutional n......
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    ...I believe that rule to have serious constitutional flaws.--------Notes: 1. See 485 Mich. cxxx, clxvii-clxxxv (YOUNG, J., dissenting). 2. 485 Mich. 1134, 1155–1165, 789 N.W.2d 777 (2010) (YOUNG, J., not...
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