U.S. Fidelity Ins. v. Catastrophic Claims

Citation773 N.W.2d 243,484 Mich. 1
Decision Date21 July 2009
Docket NumberCalendar No. 260604.,Calendar No. 271199.,Docket No. 133466.,Docket No. 133468.
PartiesUNITED STATES FIDELITY INSURANCE & GUARANTY COMPANY, Plaintiff-Appellee, v. MICHIGAN CATASTROPHIC CLAIMS ASSOCIATION, Defendant-Appellant, and Michael Migdal, Individually and as Conservator for the Estate of Daniel Migdal, a Protected Person, Defendant. Hartford Insurance Company of the Midwest, Plaintiff-Appellee, v. Michigan Catastrophic Claims Association, Defendant-Appellant.
CourtSupreme Court of Michigan


ORDER [484 Mich. 45]

On order of the Court, the motion for recusal is considered, and it is DENIED.

On March 27, 2009, this Court issued an order granting rehearing in this matter.1 Since that time, defendant Michigan Catastrophic Claims Association (MCCA) has filed a motion asking me to recuse myself. The nature of the objection is well described in the parties' briefs and responses thereto.2 I have reviewed these pleadings in detail.

I have also had an opportunity to review Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. ___, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), and the briefs filed by the parties regarding this new decision. In reviewing whether there was a due process violation in the refusal of Justice Benjamin3 to disqualify himself, the United States Supreme Court held as follows:

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the

[484 Mich. 46]

case by raising funds or directing the judge's election campaign when the case was pending or imminent. . . .

* * *

Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here—ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case. [Id., 556 U.S. at ___-___, 129 S.Ct. at 2263-64, 2265 (emphasis added).]

Given this test, I find no arguable due process violation in the cases before me. There is nothing alleged by the MCCA that would cause any reasonable person to believe that there is a significant and disproportionate influence being asserted upon me under any objective analysis.

Despite the theories proffered by the MCCA, my husband has no connection to or financial interest in this matter. He is not an attorney for or employee of any party, nor is he a litigant in either of these cases. He has no relationship with either the attorneys or the litigants in these cases. The MCCA asserts that, because my spouse has handled cases in the field of no-fault insurance law, I must recuse myself. However, this assertion suggests a basis for recusal that is so attenuated from the facts of these cases that it strains reasoned logic.

This is not to say that parties should be impeded from bringing such motions. However, not every hypothetical theory proffered by a litigant must be accepted as accurate or controlling. The issue to be decided is one of due process. Any alleged due process claim must be evaluated

[484 Mich. 47]

by an objective standard. Due process does not require that a justice recuse himself or herself merely because the justice's spouse or child is an attorney practicing in the field of law that is involved in the disputed case, just as due process would not require a justice's recusal in all medical malpractice cases merely because the justice's spouse is a physician or require a justice's recusal in all cases involving school systems merely because the justice's spouse is a teacher.

In conclusion, I have no personal bias or prejudice for or against any party in this matter. Moreover, neither I nor any member of my immediate family has any real or arguable financial interest in this case. The allegations made by the MCCA are not a basis for recusal because there is no appearance of impropriety and no due process violation. Accordingly, there is no reason to recuse myself.4 Having carefully considered this motion for recusal, I deny it.5



I agree with Justice Hathaway's denial of the recusal motion because due process is not violated in this case.

[484 Mich. 48]

I take this opportunity to provide some history on the issue of disqualification in this Court. Since 2003, I have raised the issue of the need for clear, written, and fair disqualification rules for Michigan Supreme Court justices,6 but the "majority of four" (former Chief Justice Taylor and Justices Corrigan, Young, and Markman) refused to address the issue. When this Court looked at the issue of disqualification in 2006, the "majority of four" refused to publish proposed disqualification rules formulated by members of this Court.

In March of this year, after former Chief Justice Taylor's removal from this Court as a result of his overwhelming defeat in the 2008 election, the "remaining three" (Justices Corrigan, Young, and Markman) voted against publishing proposed rules for disqualification. Fortunately, a majority voted in March to publish, for public comment until August 1, 2009,

[484 Mich. 49]

three proposals for rules of disqualification7 to be considered at a public hearing later in 2009. Of the proposals published by this Court in March, I note that Alternative C sufficiently provides the due process protections laid out by the United States Supreme Court in the recent decision of Caperton v. A.T. Massey Coal Co, Inc, 556 U.S. ___, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009).

I also note that the United States Supreme Court's Caperton8 discussion of disqualification with regard to campaign contributions for justice elections raises further issues with regard to due process concerns. Currently, this Court has no rules providing for a justice's disclosure of campaign contributions when parties to cases, or the parties' immediate family members, contribute significant amounts of money, directly or indirectly, to a justice's campaign.9 Hopefully this Court, the Legislature, and/or the public will create disclosure rules that will ensure the protection of due process rights.


I would not resolve the recusal motion of defendant Michigan Catastrophic Claims Association (MCCA) at this time. Rather, I would order supplemental briefing of the application of Caperton v. A.T. Massey Coal Co, Inc, 556 U.S. ___, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) Caperton, to these cases. Caperton addressed the disqualification of a judge when a party alleges that the judge's interest in a case requires recusal under the Due Process Clause of the federal

[484 Mich. 50]

constitution. To weigh whether recusal is required, Caperton requires an assessment of whether a serious, objective risk of actual bias exists that requires the judge to recuse himself or herself. Because the MCCA argues that Justice Hathaway's participation in these cases violates its federal due process rights, Caperton is relevant and could prove controlling. Indeed, the MCCA has submitted Caperton to this Court as supplemental authority in support of its motion.

The scope of Caperton and how courts will implement it present significant unanswered questions, particularly for our Court. Caperton held that a state supreme court justice was disqualified from hearing a case involving a corporate party whose chairman and CEO had expended $3 million to support the justice's campaign, although the individual expended this money independently and through donations to an independent political group. Caperton, supra, 556 U.S. at ___-___, 129 S.Ct. at 2254-2256. The Court concluded that the justice was disqualified although he professed that the funds were solicited and expended without his knowledge, direction, or control under state election laws very similar to our own. See Caperton v. A.T. Massey Coal Co, Inc, 223 W.Va. 624, 679 S.E.2d 223 (2008), (concurring opinion issued July 28, 2008), 223 W.Va. at ___-___, 679 S.E.2d at 245-247 (W.Va. Caperton) (Benjamin, acting C.J., concurring). Indeed, Michigan allows independent political groups to expend unlimited money during elections, often without being required even to reveal their funding sources.10 For example, during the 2008 election cycle, independent

[484 Mich. 51]

expenditures aimed at the race for Justice Hathaway's current seat on this Court topped $3.75 million.11

For these reasons, in my view, deciding the MCCA's recusal motion within days of Caperton is precipitous. Caperton was released on June 8, 2009. We have hardly had time to digest the opinion, much less its ramifications, particularly given that the opinion is positively Delphic in explaining the standards for courts attempting to implement it. Four justices of this Court now vote, without any explanation or the benefit of fact-finding, to support Justice Hathaway's decision to participate in these cases. Thus, although we have had little time to study Caperton and do not have the benefit

[484 Mich. 52]

of briefing on it, the Court proceeds essentially to hold that such a vote is a mandatory procedure for all recusal motions raising due process concerns.12

The MCCA's Motion for Recusal

The most relevant aspects of the MCCA's motion follow. After this Court issued its March 2009 decision to grant reconsideration13 of its December 2008 decision,14 occasioned by newly elected Justice Hathaway's participation

[484 Mich. 53]

in these cases, the MCCA moved for her recusal. Specifically, the MCCA argues that Justice Hathaway's husband, Michael Kingsley, has an interest that could be substantially...

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