Fieger v. Cox

737 N.W.2d 768

• Court: Michigan Supreme Court
• Decided: September 14, 2007
• Docket: 133961
• Status: Published

Opinion

737 N.W.2d 768 (2007)

Geoffrey N. FIEGER, Fieger, Fieger, Kenny & Johnson, P.C., John L. Barlow, John L. Barlow & Associates Advertising, Inc., and Nancy Fisher, Petitioners-Appellants,
v.
Michael A. COX, Individually and in his, Official Capacity as Attorney General, Terri Lynn Land, Individually and in her Official Capacity as Secretary of State, and Thomas Cameron, Respondents-Appellees.

Docket Nos. 133961, 133962. COA Nos. 266264, 267309.

Supreme Court of Michigan.

September 14, 2007.

On order of the Court, the application for leave to appeal the February 27, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

In this case, petitioners seek a recusal of Chief Justice Taylor, and Justices Corrigan, Markman, and Young.

In the recent past, petitioner Fieger has filed numerous motions for the recusal of one or more Michigan Supreme Court Justices, either in his capacity as a party or as an attorney on behalf of his clients. Each of the prior motions for recusal has involved various allegations of claimed bias, principally stemming from Michigan Supreme Court judicial campaigns. All of the previous motions for recusal have been denied. Graves v. Warner Bros., 469 Mich. 853, 669 N.W.2d 552 (2003); Gilbert v. DaimlerChrysler Corp., 469 Mich. 883, 669 N.W.2d 265 (2003); Harter v. Grand Aerie Fraternal Order of Eagles, ___ Mich. ___, 693 N.W.2d 381 (2005); Grievance Administrator v. Fieger, 472 Mich. 1244, 696 N.W.2d 703 (2005); McDowell v. City of Detroit, 474 Mich. 999, 708 N.W.2d 104 (2006); Stamplis v. St. John Health Sys., 474 Mich. 1017, 708 N.W.2d 377 (2006); Heikkila v. North Star Trucking, Inc., 474 Mich. 1080, 712 N.W.2d 153 (2006); Lewis v. St. John Hosp., 474 Mich. 1089, 711 N.W.2d 351 (2006); Johnson v. Henry Ford Hosp., 477 Mich. 1098, 729 N.W.2d 515 (2007); and Tate v. City of Dearborn, 477 Mich. 1101, 729 N.W.2d 521 (2007).

The pending motion asserts no new basis for recusal. Rather, the motion is predicated entirely on allegations made in the previous ten motions that have been considered and denied.

Chief Justice Taylor and Justices Corrigan and Young state that, as we have each done in connection with these past motions, and as Justices must do in connection with every motion for disqualification, we have each looked into our consciences in this case and concluded that we are able to accord fair, impartial and equal treatment to petitioners.

Further, the motion is predicated on the erroneous notion that disqualification of a Justice of the Michigan Supreme Court is governed by the disqualification procedure set forth in MCR 2.003. On the contrary, this procedure has never been held applicable to disqualification of Justices. See, e.g., Adair v. State of Michigan, 474 Mich. 1027, 1043, 709 N.W.2d 567 (2006) (statement of Cavanagh, J.), 1029 n. 2, (statement of Taylor, C.J., and Markman, J.); In re JK, 468 Mich. 202, 220, 661 N.W.2d 216 (2003) (statement of Weaver, J.). Throughout its history, the disqualification procedure followed in the Michigan Supreme Court is similar to the one followed in the United States Supreme Court. See Statement of Recusal Policy, United States Supreme Court, November 1, 1993; Laird v. Tatum, 409 U.S. 824, 833, 837, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972); Jewell Ridge Coal Corp. v. Local 6167, 325 U.S. 897, 65 S.Ct. 1550, 89 L.Ed. 2007 (1945) (Jackson, J., concurring).

There being no new asserted basis, the motion for recusal and for evidentiary hearing is DENIED.

MICHAEL F. CAVANAGH, J., states as follows:

I cannot participate in the decision regarding the motion for recusal and for an evidentiary hearing because current Court practices — with which I disagree — only allow the individual justice who is the subject of the motion to decide the motion. Thus, I can offer no opinion about the validity of the motion for recusal and for an evidentiary hearing that was filed.

WEAVER, J., dissents and states as follows:

I dissent from the participation of Chief Justice Taylor and Justices Corrigan and Young in this case in which Mr. Geoffrey N. Fieger is a party.^[1] For my reasons in detail, see my dissent in Grievance Administrator v. Fieger, 476 Mich. 231, 328-347, 719 N.W.2d 123 (2006) (Weaver J., dissenting), and my dissent to the denial of the motion for a stay in Grievance Administrator v. Fieger, 477 Mich. 1228, 1231-1271, 729 N.W.2d 451 (2006) (Weaver, J., dissenting).

Furthermore, although MCR 2.003 is inadequate and in need of reform, which reform I have urged^[2] this Court to undertake for almost four years, without success, the disqualification of justices is nonetheless governed by the disqualification procedure contained in MCR 2.003. Although the majority of four asserts the contrary, the past four years have exposed inconsistencies in the standards that individual justices apply to themselves when making the decision to participate, or not to participate, in a case. At times the justices have applied the court rule governing the disqualification of judges, MCR 2.003, to themselves,^[3] and at times they have not.

For example, in Adair v. Michigan, 474 Mich. 1027, 1043, 709 N.W.2d 567 (2006), Chief Justice Taylor and Justice Markman stated that "[p]ursuant to MCR 2.003(B)(6), we would each disqualify ourselves if our respective spouses were participating as lawyers in this case, or if any of the other requirements of this court rule were not satisfied." Justice Young concurred fully in this legal analysis. Id. at 1053, 709 N.W.2d 567. Similarly, in Grosse Pointe Park v. Michigan Muni. Liability & Prop. Pool, 473 Mich. 188, 702 N.W.2d 106 (2005), Justice Corrigan used the remittal of disqualification process of MCR 2.003(D). At other times, however, the same justices have not followed the provisions of MCR 2.003. For example, in Gilbert v. DaimlerChrysler Corp., 469 Mich. 883, 889, 669 N.W.2d 265 (2003), then-Chief Justice Corrigan and Justices Taylor, Young, and Markman denied a motion for reconsideration of the Court's order denying the motion for disqualification and did not refer the motion to the State Court Administrator for the motion to be assigned to another judge for review de novo, as would be proper under MCR 2.003(C)(3).

Assertions that justices can continue to look into their consciences and conclude they are able to accord fair, impartial, and equal treatment to the parties and their counsel without any independent check on the justices' decisions are incorrect. This method is insufficient and inadequate to meet the due process rights of parties and their counsel. Further, while it appears to continue to be for some justices a "tradition" of this Court for a justice who disqualifies himself or herself from a case to not give written reasons, and to sometimes apply MCR 2.003 to himself or herself, and to sometimes not, it is a "tradition of secrecy" and inadequacy that must for all justices end now. An impartial judiciary is "ill served by casting a cloak of secrecy around the operations of the courts. . . . "^[4]

MARILYN J. KELLY, J., states as follows:

I do not participate in the decision regarding the motion for recusal. The Court's established procedure is to leave the decision to the discretion of the challenged justice. However, I continue to urge the Court to establish and put in writing a better procedure to handle motions to disqualify a Supreme Court justice from participation in a case.

MARKMAN, J., states as follows:

I will not participate in this case because it directly pertains to the Attorney General's investigation of petitioners' financial conduct undertaken in connection with my reelection campaign in 2004.

NOTES

[1] I note that Justice Markman has properly decided not to participate in this case and has also complied with his constitutional duty to provide reasons for his nonparticipation. Const. 1963, art. 6, § 6.

[2] Since May 2003, I have repeatedly called for this Court to recognize, publish for public comment, place on a public hearing agenda, and address the need to have clear, fair, orderly, and public procedures concerning the participation or disqualification of justices. See, e.g., my statements and opinions in Gilbert v. DaimlerChrysler Corp., 469 Mich. 883, 669 N.W.2d 265 (2003); Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass'n, 472 Mich. 91, 96, 693 N.W.2d 358 (2005); McDowell v. Detroit, 474 Mich. 999, 1000, 708 N.W.2d 104 (2006); Stamplis v. St. John Health Sys., 474 Mich. 1017, 708 N.W.2d 377 (2006); Adair v. Michigan, 474 Mich. 1027, 1044, 709 N.W.2d 567 (2006); Heikkila v. North Star Trucking, Inc., 474 Mich. 1080, 1081, 712 N.W.2d 153 (2006); Lewis v. St. John Hosp., 474 Mich. 1089, 711 N.W.2d 351 (2006); People v. Parsons, ___ Mich. ___, 728 N.W.2d 62 (2007); Ruiz v. Clara's Parlor, Inc., 477 Mich. 1044, 728 N.W.2d 855 (2007); Neal v. Dep't of Corrections, 477 Mich. 1049, 728 N.W.2d 857 (2007); State Automobile Mut. Ins. Co. v. Fieger, 477 Mich. 1068, 1070, 730 N.W.2d 212 (2007); Ansari v. Gold, 477 Mich. 1076, 1077, 729 N.W.2d 213 (2007); Short v. Antonini, ___ Mich. ___, 729 N.W.2d 218, 219 (2007); Flemister v. Traveling Med. Services, PC, ___ Mich. ___, 729 N.W.2d 222, 223 (2007); Johnson v. Henry Ford Hosp., 477 Mich. 1098, 1099, 729 N.W.2d 515 (2007); Tate v. City of Dearborn, 477 Mich. 1101, 1102, 729 N.W.2d 521 (2007); and Jordan v. Department of Labor & Economic Growth, ___ Mich. ___, ___ N.W.2d ___, 2007 WL 2684845 (Docket # 133017) (2007).

[3] Most recently, in People v. Parsons, supra at 66-67 and n. 10, and after my urging, Justice Corrigan disclosed in her statement of nonparticipation that her son was working for the law firm retained by the defendant, that she was personally biased in favor of her son, and, further, that there was a "distinct likelihood" that she had "extrajudicial knowledge of this very case." Accordingly, under both MCR 2.003(B)(1) and (2), it was appropriate for Justice Corrigan to disqualify herself from hearing the case.

[4] Scott v. Flowers, 910 F.2d 201, 213 (C.A.5, 1990).