Michigan Supreme Court 

# Order

Lansing, Michigan

March 6, 2007 Clifford W. Taylor, Chief Justice 132975 & (43) Michael F. Cavanagh
Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellant, Justices

v SC: 132975 COA: 273560 Wayne CC: 06-100051-01 36 th DC: D06-55281; D06-55282 TODD EMERSON PARSONS, Defendant,

and

GABRIEL JOHN SEIBT, Defendant-Appellee.

________________ _______________ __________/

On order of the Court, the motion for immediate consideration is GRANTED, and
we further ORDER that district and circu it court proceedings are stayed pending the completion of this appeal. Th e application for leave to app eal the October 24, 2006 order of the Court of Appeals remains pending.

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

I concur with the order to stay trial court proceedi ngs in this case and write separately to state again that a justice has a duty to supply the public, and thereby future litigants, with his or her reasons for nonparticipation. As I wrote almost two (2) years ago (in 2005) in Scalise v Boy Scou ts of America , 473 Mich 853, 854 (2005) (Weaver, J., dissenting):

Const 1963, art 6, § 6 , which states that “Decisions of the supreme court . . . shall be in writing and shall contain a concise statement of the
facts and reasons for each decision . . .” requires that justices give written
reasons for each decision. [1] There is no more fundamental purpose for the requirement that the decisions of th e Court be in writing than for the

1 Article 6, § 6 of the 1963 Mi chigan Constitution states, in full:

Decisions of the supreme cour t, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement
of the facts and reasons for each deci sion and reasons for each denial of leave to appeal. When a ju dge dissents in whole or in part he shall give in writing the reasons for his dissent.2

decisions to be accessible to the citizen s of the state. B ecause a justice’s decision to not participate in a case can, itself, change the outcome of a case, the decision is a matter of pub lic significance and public access and understanding regarding a ju stice’s participation or nonparticipation is vital to the public’s ability to assess th e performance of the Court and the performance of the Court's individual justices. Thus, the highest and best reading of art 6, § 6 requires that a ju stice’s self-initiate d decision not to participate, or a challenged justice’s decision to participate or not participate, should be in writing and accessible to the public.
As I stated in my Decemb er 21, 2006, dissent to the order denying the motion for stay in Grievance Administrator v Fieger, 477 Mich 1228 (2006), I first raised the issue of justice recusal almost f our (4) years ago when, in In re JK, 468 Mich 202 (2003) (a termination of parental rights and reversal of adoption case, not involving attorney Geoffrey Fieger), I had reason to examine the rules governing my ow n participation in
that case:

During the consideration of In re JK , I was informed that unwritten “traditions” governed the decision an d that, MCR 2.003 the court rule concerning disqualification of all oth er Michigan judges, did not apply to justices of the Michigan Supreme Court. I was further informed that it was
a “tradition” of the Court that th e decision whether a justice would disqualify himself or herself was left to the individual ju stice and that no
reasons for the decision wh ether to participate or not participate in a case were to be given.

I concluded that these unwritte n traditions and the unfettered discretion violate Michigan’s Constitution, which requires ju stices to give written reasons for each decision, includ ing a decision to participate in or be disqualified from a case. [ 2 ]

Because the Court’s traditions were clearly inadequate, in In re JK,

supra, I followed the remittal of disqua lification proce dure provided by MCR 2.003(D). In light of my unders tanding of the requirements of Const 1963, art 6, § 6, I also provided an explanation in writing of my decision not to participate and as ked that the Court open an administrative file to explore the rules that sh ould govern justice di squalification decisions. [ 3 ]
[ Fieger, supra at 1240.]

2 Const 1963, art 6, § 6, supra , n 1.

3 In my statement of nonparticipation in In re JK, supra , I also proposed for public
comment amendments of MCR 2.003 that woul d require that a justice publish in the
record of the case the reasons for the decision to participate or not participate in the case when the issue of disqualification was raised by a party, the justice himself or herself, or3

Thus, any assertion that my pos ition on justice recusals is ne w, or began with attorney Fieger’s motion to disqualify “the majority of four” (then Chief Justice Corrigan and Justices Taylor, Young, and Markman) is incorrect.

It is important to note that attorney Fieger initially move d to disqualify me, as well as “the majority of four.” Then, when I denied the mo tion with written reasons for my decision not to recuse myself, attorney Fieger made no further disqualification motions against me, although attorney Fieger has continued to ma ke disqualification motions against “the majority of four.” See Gilbert v DaimlerChrysler Corp , 469 Mich 883, 889 (2003) (Weaver, J., participati ng in part and voting to gr ant reconsideration in part).

It is also untrue that my position on justice recusals has only been directed toward Chief Justice Taylor and Justi ces Corrigan, Young, and Markman. I have, in fact, raised the issue of the importance of providing the reasons for n onparticipation to Justice Cavanagh, most recently in White v Hahn , ___ Mich ___ (2007) (Docket No. 132191), a case in which Justice Cavanagh’s dau ghter represents one of the parties. 4

In Hahn, supra, I noted that Justice Cavanagh ha d not included his reason for recusal, but had informed me he would do so in future cases. Furt her, Justice Kelly has also indicated to me that in the future, she will request that her reasons for not participating be included with her decisions on the orders. Thus, obviously, contrary to assertions of a concurring justice, I have taken up my position on justice recusals with Justices Cavanagh and Kelly. As noted abov e, I have publicly raised this issue since 2003 by my statement in In re JK, supra.

At present there is no suffici ent system in place in this Court for providing to justices adequate notice of justice recusals. Given the current “helter-skelter” approach to handling justice recusal decisions, it is un reasonable to expect that any justice would

another justice. I further ou tlined the proce dure for a justice to raise his or her potential disqualification with the partie s and their attorneys. See In re JK, supra, 220-221 (Weaver, J., nonparticipation statement).

4 See Hahn

, supra :
Weaver, J., ( concurring ). I concur in the or der of denial and note that Justice Cavanagh ha s properly supplied to the justices and staff his reason for his decision not to participat e in this case becau se his daughter, Megan Cavanagh, represents the defendant , Robert Hahn. However, in this case, he has not, as required by Michig an Const 1963, art 6, § 6, requested
that the reason for his decision be incl uded with the order. I further note that Justice Cavanagh has informed me that in the futu re he will request that his reasons for not participating be included with his decisions on the orders. [ Hahn, supra, ___ Mich ___ (2007).]4

be able to identify all jus tice recusals. For instance, it is when a case appears on a conference agenda, or sometimes, but not alwa ys, on commissioner reports, that a justice has a reasonable opportunity to learn about a fellow justi ce’s recusal from a case and to request that nonparticipating justice to provide written reasons for not participating. 5

Further, other assertions by concurring justices are simp ly incorrect and untrue. For instance: my relia nce on art 6, § 6 of the Michigan Constitution is not newfound or incorrect as evidenced by this very order, which is issu ed as a “decision of the Supreme Court,” not just from one justice. Further, I have no proposal or “desire to abolish our elective system for justices and judges.” 6

A justice’s decision to partic ipate or not participate (recuse himself or herself) in a case implicates a bedr ock principle of our judicial system—the impartiality of the judiciary. Without a reco rd of a justice’s reasons to not participate in a case, how can future litigants be guaranteed that the same reasons are not present in their cases? Moreover, how can the pe ople of Michigan be sure that a justice is not simply refusing to work on a case to avoid some controversy that the case might involve—for example, a controversy that might call in to question his or her impar tiality on an issue or make
reelection more difficult?

The impartiality of the judiciary preserves the ethics of judicial administration, protects decision-making, and en sures the public’s, and thereb y future litigants’, trust and confidence in the judiciary. Thus , preserving the impartiality of the Court is “real work of
the Court.”

What are needed are clear, fair, enfo rceable, written, and published rules concerning the participation, n onparticipation, or disqualificat ion of justices. Such rules would enhance the accountability of justices to the public. They would provide a way for the public to have some knowledge about how justices conduct the public’s business so that the public could accurately assess the justices’ performance of their duties.

5 In addition, when justice “non-hold memos” associated with orders scheduled to enter are received monthly in large batches, with sometimes less than a week before the scheduled entry date, a justi ce does not have a reasonable opportunity to learn about a fellow justice’s recusal from a case.

6 My revised proposal for the 2007-2 008 election cycle to reform and improve, not abolish, the present system of election and ap pointment of justices, along with reform of term limits for justices, will be published on my personally funded website, <www.justiceweaver.com>, this year, 2007. My similar proposal to reform and improve, not abolish, the election and ap pointment of justices for th e 2005-2006 election cycle was
circulated in 2005-2006.5

Further while it appears to continue to be for some justices a “tra dition” of this Court for a justice who disqualifies himself or herself from a case to not give written reasons, it is a “tradition of secrecy” that must for all justices end now. An impartial judiciary is “ill served by casting a cloak of secrecy around the opera tions of the courts
. . . .” 7

Y OUNG , J., concurs and stat es as follows:

I concur in the order, but write solely to illustrate for the public the inconsistency
of Justice Weaver’s newfound desi re for openness on this Court.

Until recently, Justice Weaver wa s fully content to follow the traditions of this Court. In fact, as Justice Weaver concedes, she has declined to participat e in more than 250 cases and refused to p ublicly disclose her reas ons for doing so. See Advocacy Org for Patients & Providers v Auto Club Ins Ass’n , 472 Mich 91, 97 n 1 (2005) (Weaver, J., concurring). Yet, contrary to the tradition of this Court and her personal practices,
Justice Weaver now contends that a justice must expl ain why he or she chooses to recuse in a particular case. Her ostens ible justification for her new position is Const 1963, art 6, § 6, which requires that “[d] ecisions of the supreme court . . . be in writing and . . .
contain a concise statement of the facts an d reasons for each deci sion . . . .” Our disqualification practice requires that each justi ce assess whether it is appropriate to sit in a particular case. Thus, the deci sion whether to sit is one made only by that justice and is not a “decision of the supreme court” within th e meaning of Const 1963, art 6, § 6. It
should be stressed that until recently, Justi ce Weaver never believed that this constitutional provision applied to recusal decisions. Justice Weaver’s own longstanding practice (in which she declined to state her reasons for sel f-disqualification) was not only
consistent with the Court’s hi storic disqualification practi ce but with the constitution as
well.

Most significant about Jus tice Weaver’s novel reliance on this constitutional provision is her selective app lication of this provision to her colleagues. Her newfound “constitutional mandate” apparently does not bi nd Justices Kelly and Cavanagh. In Reed
v Breton , 475 Mich 531 (2006), Kakish v Dominion of Canada Gen Ins Co, 476 Mich 854 (2006), and Smith v Smith, 474 Mich 1091 (2006)—all recent cases in which Justice Cavanagh disqualified himself from participation without di sclosing his reasons—Justice Weaver made no complaint that he violat ed the constitution for failing to do so. Similarly, when Justice Kelly declined to participate in Sahr v Wal-Mart Stores, Inc , 477 Mich ___ (2006), Beckes v Detroit Diesel Corp, 475 Mich 878 (2006), and People v Mox, 475 Mich 867 (2006), withou t stating her reasons, again Ju stice Weaver made no demand for disclosure on Justice Kelly, nor did she claim that Justi ce Kelly’s silence implicated “the impartiality of the judiciary.” Certainl y, if the failure to disclose the reasons for

7 Scott v Flowers , 910 F2d 201, 21 3 (CA 5, 1990).6

recusal casts “a cloak of secrecy” around the Court, as Justice Weaver now claims, then her demands ought to be applied uniformly.

Only in response to this statement has Justice Weaver ever challenged a recusal decision of Justice Cavanagh or Justice Kelly. She cites the pending case of White v
Hahn , Docket No. 132191, in support of h er evenhanded application of her novel constitutional mandate. However, even her explanation of her position in Hahn belies her claim of uniformity. Justice Weaver pronoun ces that Justice Cavanagh’s recusal meets her standard of “public di sclosure” because Justice Cavanagh privately disclosed to
members of the Court his reasons for refusing to p articipate in the cas e. One will search the public record of this Co urt in vain for a public explanation why Justice Cavanagh and Justice Kelly have chosen to disqualify them selves in any other particular cases. But more important to this discussion, one will also search in vain to find a statement from Justice Weaver commenting on their failure to state publicly their reasons for recusal.

Because Justice Cavanagh and Justice Kelly have been following the traditions of this Court in recusal matters, there is no r eason to criticize them. However, Justice Weaver ought to explain why she fails to apply her rules to all justices of this Court.
Justice Weaver makes no real effort to explain the incons istency of the demands she places upon Chief Justice Taylor, Justices Corrigan and Markman, and me and those she places (or refuses to place) on Ju stices Cavanagh and Kelly. 8

It is well past time for Justice Weaver to end her siege and be gin to again devote her energies to the work of this Court rather than the de struction of her colleagues and the reputation of this Court.

C ORRIGAN , J., not participating, states as follows:

The current act in the theater of the Michigan Suprem e Court puts me in mind of
Zero Mostel’s rendition of the song “Comedy Tonight” 9 :

Something familiar, Something peculiar,

8 Justice Weaver’s suggestion that she is unable to monitor the justices’ recusal decisions because the process is too “he lter-skelter” is simply untenable. Every order of this Court is distributed to all of the justices well in advance of its publication. Furthermore, despite the alleged “helter-ske lter” nature of the process, Justice Weaver’s watchful eye has yet to overlook an inst ance where Chief Justice Tayl or, Justices Corrigan and Markman, and I have dec lined to participate.

9 Music and lyrics by Stephen Sondheim, from the play “A Funny Thing Happened on the Way to the Forum.”7

Something for everyone: A comedy tonight!

Something appealing, Something appalling, Something for everyone: A comedy tonight!

* * *

No royal curse, no Trojan horse, And a happy ending, of course! Goodness and badness,
Panic is madness— This time it all turns out all right! Tragedy tomorrow, Comedy tonight!

At our conference on January 31, 2007, I decl ared myself not participating in this case and further declined to give a statement of reasons for nonparticipation, as is the traditional practice of our Court. Justice Weaver then declared th at she would issue a statement opposing my decision not to furnish reasons ; her doing so will delay the disposition of this case. Accordingly, I feel compelled to disc lose my reasons for nonparticipation in the int erest of a speedy di sposition of this apparent emergency.

My beloved son, Dani el Corrigan Grano, is a third-y ear law student and, at age 25, a city councilman who has, believe it or not , political aspirations. Dan also works as a law clerk at the small, excellent firm of Flood, Lanctot, & Conno r, the lawyers who are defending the Parsons case. I do not know on what cases Dan performs legal research, nor am I aware that any screening is occurring in the law firm regarding his assignments. Thus, he may well have worked on this case, and we may we ll have discussed this very case at the dinner table, not realizing that it would ultimately come before this Court. Thus, I am not comfortable in sitting in this case. Lest there be any doubt, however, I am totally, completely, 100 p ercent biased and prejudi ced in favor of my son Daniel. I have been since he was just a gleam in his fath er’s eye, and I plan to hug him no matter how old he gets! (He is also very handsome!)

I have not participated in the substantive merits of this case. I initia lly declined to furnish my reasons so as not to either emb arrass my son or afford unearned publicity to
him or his law firm. It does not take hundreds of pages or complex rules of_______________________________________ __ 8

disqualification to understand that a moth er should not judge a case involving her son. 10 And restraint of speech on th e subject is just sensible.

Justice Weaver has forced my hand in the interests of her own agenda. I now say to her, as she herself once liked to say, “Let’s cut the comedy.” 11 Betty, can’t we stop wasting the taxpayers’ money on this frolic and detour? Or are you determined to continue these theatrics, hoping that public opinion will somehow support your desire to abolish our elective system for justices a nd judges? Whatever your goal, this low comedy of your making can only end in tragedy: the publi c’s loss of respect for this Court and for our state’s judicial branch.

All seven of us are fortunate to be swor n to deliver on the promise of ordered liberty to the people of Michigan. That is what we have been doing to the best of our abilities. I again call on Jus tice Weaver, my one-time friend and still colleague, to rejoin the fold of ordinary mortals with the other six of the peopl e’s justices, doing the people’s important work. As I have told Justice W eaver, I am praying—as are many others of our fellow citizens—for her personall y and for her to pu t an end to this sad and low-comic chapter in our Court’s hist ory. We should do what mere mortals do— forgive our trespasses against one another so we can ex ecute our sworn duty an d deliberate together.

10 I continue to approve the hold ing and analysis set forth in In re Haley , 476 Mich 180 (2006). As my statement makes clear, I am not recusing myself because of any

appearance of bias, but because of the distinct likelihood that I have extrajudicial knowledge of this very case.

11 Investiture of Justice Weaver, remarks by then-Judge Corrigan, Michigan Reports, Michigan Supreme Court Historical Soci ety, Index to Special Sessions, p 159.

p0306 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.

March 6, 2007

Clerk