Friday, October 19, 2007

Campaign cash and recusal: a lost cause in the MSC?

In an earlier post, Michigan Lawyer: Justices, money, elections and recusal, we took a look at two Michigan Campaign Finance Network proposals.

One recommended "voluntary full public funding" of Michigan Supreme Court elections.

The other urged the MSC to "develop standards for recusal for cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices."

Recusal: a heated debate in the MSC

Over in the Hall of Justice, the topic of recusal has generated ferocious debate among the justices. The arguments have focused, for the most part, on the court's practice of letting justices who are the subject of a recusal motion decide the motion themselves and whether the justices are required to provide reasons for a decision to either remain on the case or to back off.

Historically, the justices have remained silent about their reasons. But since 2003, Justice Elizabeth A. Weaver has become insistent that reasons be provided.

See, e.g. "If it ain't broke... MSC declares procedures for handling recusal motions don't need fixing" and "Is it time for MSC to reform how it handles recusal motions? Experts weigh in on impact of high court's recent ruling".

The latest salvos are in two of the high court's orders, Jordan v. Dep't of Labor & Economic Growth, and Fieger v. Cox.

The issue of recusal standards addressing justices and political financial matters is a subset of the larger issue of the high court's recusal procedures in general. See the sidebar on the right.

The Legislature will need to hash out any public funding proposal. Recusal standards based on campaign contributions are within the court's domain, but with the court's current makeup, this is not likely to happen anytime soon.

Here's why.

In Adair v. State of Mich., the plaintiffs asked Chief Justice Clifford W. Taylor and Justice Stephen J. Markman to recuse themselves because both justices' wives worked for the office of the Attorney General, who was defending the case.

The motion produced a memorable response, in which every justice weighed in on the topic of recusal. And, Justices Taylor and Markman, previously staunch defenders of the court's "no reasons" tradition, broke that tradition when they filed an 18-page statement explaining why they were denying the motion.

They responded to every argument the plaintiffs made, and then gratuitously addressed a topic the plaintiffs hadn't mentioned — campaign contributions.

They started with some undisputable givens: every “justice in Michigan in modern times” has received campaign contributions; under the state constitution, justices must compete in elections; it takes bushel baskets of money to run a campaign and the money has to come from somewhere. Then they said this:
Of considerable relevance to the subject of campaign contributions as a basis for recusal is the Legislature’s establishment of limits on individual and political action committee contributions to Michigan judicial candidates. MCL 169.252 and 169.269. Such limits must be understood as clearly reflecting the Legislature’s, and the people’s, understanding that contributions in these amounts will not supply a basis for disqualification. That is, lawful contributions made within these limits, lawfully reported and lawfully disclosed, cannot fairly constitute a basis for judicial disqualification. Otherwise, these statutes, just as MCR 2.003 and Canon 3(C), would be little more than cleverly devised snares to be exploited by those wishing to undermine individual judges. A judge who plays by the rules should not be required to recuse himself or herself on the basis of such conduct. Thus, we assume, as have all the justices before us, that the Legislature decided that lawful campaign contributions would not give rise to a basis for judicial recusal.

Those words were written Jan. 31, 2006.

In statements released the same day, both Justices Robert Young and Maura Corrigan indicated support for the joint statement of Justices Taylor and Markman.

Justice Young: "I support their joint statement and fully concur in the legal analysis of the ethical questions presented in it."

Justice Corrigan: "I agree with their legal analysis of the ethical issues raised."

There's no reason to think that any of them see things differently now.

On a seven-justice court, four votes are needed to make things happen.

And that’s why the MCFN’s suggestion that the court develop recusal standards addressing the issue of political money will remain just that, a suggestion, as far as the Michigan Supreme Court is concerned.

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