Michigan Supreme Court 

# Order

Lansing, Michigan

April 6, 2007 Clifford W. Taylor,
Chief Justice

130869 Michael F. Cavanagh (31) Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman, VENUS FLEMISTER, Personal Justices Representative of the Estate of Ray Flemister, Deceased, Plaintiff-Appellee,

v SC: 130869 COA: 266223 Wayne CC: 04-409314-NH TRAVELING MEDICAL SERVICES, P.C., and GARY G. ERRIGO, D.C., PA-C, Defendants-Appellants,

and

ARNOLD HOME, INC., DR. MARVIN TRIMAS, DR. GODOFREDO C. SANTIAGO, DR. DANIEL REDDY, DR. BHAMINI SUDHIR, and SINAI-GRACE HOSPITAL, Defendants.

________________ _______________ __________/

In this case, plaintiff seeks a stay of proceedings until final disposition of pending federal litigation, wherein plaintiff’s co unsel initiated a lawsuit challenging the constitutionality of the Michigan Supreme Court recusal rule. See Fieger v Ferry , 471 F 3d 637 (CA 6, 2006).

In the recent past, plaintiff’s counsel has filed numerous motions for the recusal of one or more Michigan Supreme Court Justices, e ither in his capacity as a party or as an attorney on behalf of his c lients. Each of the prior mo tions for recusal has involved various allegations of claimed bias, princi pally stemming from Michigan Supreme Court judicial campaigns. All of the previous motions for recusal have been denied. Graves v

Warner Bros , 469 Mich 853 (2003); Gilbert v DaimlerChrysler Corp , 469 Mich 883 (2003); Harter v Grand Aerie Frat ernal Order of Eagles , 693 NW2d 381 (2005);2

Grievance Administrator v Fieger , 472 Mich 1244 (2005); McDowell v City of Detroit

, 474 Mich 999 (2006); Stamplis v St John Health Sys , 474 Mich 1017 (2006); Heikkila v North Star Trucking , Inc, 474 Mich 1080 (2006); and Lewis v St John Hosp , 474 Mich 1089, (2006).

The pending motion to stay this case asse rts no new basis for recusal. Rather, the motion is predicated entirely on allegations ma de in the previous eight motions that have

been considered and denied.

As we have each done in connection with these past motions, and as Justices must do in connection with every mo tion for disqualification, we have each looked into our

consciences in this case and conc luded that we are able to ac cord fair, impartial and equal treatment to plaintiff's counsel and his clients.

Further, the motion is predicated on the e rroneous notion that disqualification of a Justice of the Michigan Supreme Court is go verned by the disqualification procedure set

forth in MCR 2.003. On the co ntrary, this procedure has neve r been held applicable to disqualification of Justices. See, e.g., Adair v State of Michigan , 474 Mich 1027, 1043 (2006) (statement of Cavanagh, J.), 1029 n 2, (statement of Taylor , C.J., and Markman, J.); In re JK, 468 Mich 202, 220 (2003) (statement of Weave r, 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 St atement of Recusal Policy, United States Supreme Court, November 1, 1993; Laird v Tatum , 409 US 824, 833, 837; 93 S Ct 7; 34 L Ed 2d 50 (1972); Jewell Ridge Coal Corp v Local 6167 , 325 US 897; 65 S Ct 1550; 89 L Ed 20 07 (1945) (Jackson, J., concurring ).

There being no new asserted basis that w ould warrant a stay of proceedings, the

motion is DENIED.

The application for leave to appeal remains pending.

C AVANAGH and K ELLY , JJ., would grant the motion for stay.

W EAVER , J., dissents and states as follows:

I dissent from the participation of the ma jority of four, Chie f Justice Taylor and Justices Corrigan, Young, and Markman in this case, where Mr. Geoffrey N. Fieger’s law firm represents the plaintiff. For my reasons in detail, see my dissent in Grievance Administrator v Fieger, 476 Mich 231, 328-347 (2006) (Wea ver J., dissenting), and my dissent to the denial of the motion for stay in Grievance Administrator v Fieger, 477 Mich 1228, 1231-1271 (2006) (Weaver J., dissenting).3

I also dissent from the order denying plai ntiff’s motion for stay of proceedings pending Mr. Fieger’s lawsuit in the United States District Cour t for the Eastern District of Michigan concerning Michigan’s disqualification rules governing Supreme Court justices. See Fieger v Ferry , 471 F3d 637 (CA 6, 2006). I would grant the motion to
stay.

Furthermore, although MCR 2.003 is inad equate and in need of reform, which reform I have urged, 1 without success for almost 4 year s, this Court to undertake action and achieve, the disqualification of justices is 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 st andards that individual justices apply to themselves when making their deci sion to participate, or not to participate, in a case. At times the justices have applied the court ru le governing the disqua lification of judges, MCR 2.003, to themselves, and at times they have not.

For example, in Adair v Michigan, 474 Mich 1027, 1043 (2006), Chief Justice Taylor and Justice Markman st ated that “[p]ursuant to MCR 2.003(B)(6), we would each disqualify ourselves if our respective spouses we re participating as lawyers in this case, or if any of the other requirements of this co urt rule were not satisfied.” Justice Young concurred fully in this legal analysis. Id. at 1053. Similarly, in Grosse Pointe Park v Michigan Municipal Li ability & Prop Pool, 473 Mich 188 (2005), then-Chief Justice Corrigan used the remittal of disqualification process of MC R 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 (2003), then-Chief Justice Corrigan and Justices Taylor, Young, and Markman de nied a motion for

reconsideration of the Court’ s order denying the motion for disqualificati on and did not

refer the motion to the State Court Administra tor for the motion to be assigned to another judge for review de novo, as would be proper under MCR 2.003(C)(3).

1 Since May 2003, I have repeatedly called fo r this Court to recognize, publish for public comment, place on a public hearing agenda, an d address the need to have clear, fair, orderly, and public procedures concerning the pa rticipation or disqualif ication of justices. See, e.g

. , statements of Weaver, J., in In re JK, 468 Mich 202 (2003); Gilbert v DaimlerChrysler Corp, 469 Mich 883 (2003); Advocacy Org for Pa tients & Providers v

Auto Club Ins Ass’n , 472 Mich 91 (2005); McDowell v Detroit, 474 Mich 999 (2006); Stamplis v St John Health Sys , 474 Mich 1017 (2006); Heikkila v North Star Trucking,
Inc, 474 Mich 1080 (2006); Lewis v St John Hosp, 474 Mich 1089 (2006); Adair v Michigan, 474 Mich 1027 (2006); Grievance Administrator v Fieger, 476 Mich 231 (2006) ; Grievance Administrator v Fieger , 477 Mich 1228 (2006); People v Parsons

, Docket No. 132975 (2007); Ruiz v Clara’s Parlor , Docket No. 130847 (2007); and Neal v Dep’t of Corrections , 477 Mich ___ (Docket No. 1308 62, issued March 23, 2007)._______________________________________ __ 4

Assertions that justices can continue to look into their consciences and conclude they are able to accord fair, impartial, and e qual treatment to partie s’ counsel and clients without any independent check on 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 hersel f 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 in adequacy 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

. . . .” 2

2 Scott v Flowers , 910 F2d 201, 21 3 (CA 5, 1990).

l0403 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

April 6, 2007

Clerk