Order Michigan Supreme Court 

Lansing, Michigan 

March 23, 2007 Clifford W. Taylor,

 Chief Justice 

130847 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

GUADALUPE RUIZ, Maura D. Corrigan 

Robert P. Young, Jr. Petitioner-Appellant, Stephen J. Markman,

 Justices v SC: 130847 

 COA: 264833 
 Wayne CC: 05-505101-AE

CLARA’S PARLOR, INC., and

DEPARTMENT OF LABOR & ECONOMIC
 GROWTH, UNEMPLOYMENT INSURANCE 

AGENCY,
 Respondents-Appellees. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the December 28, 2005 

order 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. 

WEAVER, J., concurs and states as follows: 

I concur in the order denying leave to appeal. I write separately to note that 

Justice Markman has disqualified himself from this case and has supplied no reasons for 

his decision not to participate. 

Although I specifically requested Justice Markman’s reasons for not participating 

in this case, he refused to provide them in writing or verbally—stating to me at 

conference that it was “none of your business”—for his not participating in this case. 

My request that Justice Markman give reasons on the record for his 

nonparticipation is not trivial. Nor is it motivated by resentment or personal ill will. A 

justice has a duty to supply the parties, the public and thereby future litigants with his or 

her reasons for nonparticipation. 

Where, as here, a justice decides on his own motion not to participate in a case, the 

justice should be accountable to the parties and the public for his decision. Although 

Justice Markman has taken the time to personally attack me in this case, he still has not 

given his reasons for not participating. While his reasons likely support his decision to 
 

2 

not participate, his decision needs to be in writing, on the record, and available to the 

parties, the public, and thereby future litigants.1 

1 For a detailed discussion of why it is necessary for a justice recusing himself/herself 

from a case to provide written reasons for his/her decision, see my statement in People v 

Parsons, unpublished order of the Supreme Court, entered March 6, 2007 ( Docket No. 

132975), provided below: 

WEAVER, J., concurs and states as follows: 

I concur with the order to stay trial court proceedings 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 Scouts 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 the Court be in writing than for the 

decisions to be accessible to the citizens of the state. Because a justice’s 

decision to not participate in a case can, itself, change the outcome of a 

case, the decision is a matter of public significance and public access and 

understanding regarding a justice’s participation or nonparticipation is vital 

to the public’s ability to assess the 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 justice’s self-initiated 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 December 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 four (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 own participation in that 

case: 

“During the consideration of In re JK, I was informed that unwritten 

‘traditions’ governed the decision and that, MCR 2.003 the court rule 

concerning disqualification of all other Michigan judges, did not apply to 

justices of the Michigan Supreme Court. I was further informed that it was 
 

 

3 

a ‘tradition’ of the Court that the decision whether a justice would 

disqualify himself or herself was left to the individual justice and that no 

reasons for the decision whether to participate or not participate in a case 

were to be given. 

“I concluded that these unwritten traditions and the unfettered 

discretion violate Michigan’s Constitution, which requires justices to give 

written reasons for each decision, including 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 disqualification procedure provided by 

MCR 2.003(D). In light of my understanding of the requirements of Const 

1963, art 6, § 6, I also provided an explanation in writing of my decision 

not to participate and asked that the Court open an administrative file to 

explore the rules that should govern justice disqualification decisions.[3] 

[Fieger, supra at 1240.]” 

Thus, any assertion that my position on justice recusals is new, 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 moved to 

disqualify me, as well as “the majority of four.” Then, when I denied the 

motion 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 make disqualification motions against “the 

majority of four.” See Gilbert v DaimlerChrysler Corp, 469 Mich 883, 889 

(2003) (Weaver, J., participating in part and voting to grant reconsideration 

in part). 

It is also untrue that my position on justice recusals has only been 

directed toward Chief Justice Taylor and Justices Corrigan, Young, and 

Markman. I have, in fact, raised the issue of the importance of providing 

the reasons for nonparticipation to Justice Cavanagh, most recently in 

White v Hahn, ___ Mich ___ (2007) (Docket No. 132191), a case in which 

Justice Cavanagh’s daughter represents one of the parties.4

 In Hahn, supra, I noted that Justice Cavanagh had not included his 

reason for recusal, but had informed me he would do so in future cases. 

Further, Justice Kelly has also indicated to me that in the future, she will 
 

 

4 

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 above, I have publicly raised this issue 

since 2003 by my statement in In re JK, supra. 

At present there is no sufficient 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 

unreasonable to expect that any justice would be able to identify all justice 

recusals. For instance, it is when a case appears on a conference agenda, or 

sometimes, but not always, on commissioner reports, that a justice has a 

reasonable opportunity to learn about a fellow justice’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 simply incorrect 

and untrue. For instance: my reliance on art 6, § 6 of the Michigan 

Constitution is not newfound or incorrect as evidenced by this very order, 

which is issued 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 participate or not participate (recuse himself 

or herself) in a case implicates a bedrock principle of our judicial system— 

the impartiality of the judiciary. Without a record 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 people 

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 into question his or her impartiality on an issue 

or make reelection more difficult? 

The impartiality of the judiciary preserves the ethics of judicial 

administration, protects decision-making, and ensures the public’s, and 

thereby 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, enforceable, written, and published 

rules concerning the participation, nonparticipation, or disqualification 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 
 

5 

about how justices conduct the public’s business so that the public could 

accurately assess the justices’ performance of their duties. 

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, 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 operations of the courts . . . .”7

 ______________________________ 

1

 Article 6, § 6 of the 1963 Michigan Constitution states, in full: 

Decisions of the supreme court, including all decisions on 

prerogative writs, shall be in writing and shall contain a concise statement 

of the facts and reasons for each decision and reasons for each denial of 

leave to appeal. When a judge dissents in whole or in part he shall give in 

writing the reasons for his dissent. 

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 would 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, or another justice. I 

further outlined the procedure for a justice to raise his or her potential 

disqualification with the parties 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 order of denial and note 

that Justice Cavanagh has properly supplied to the justices and staff his 

reason for his decision not to participate in this case because his daughter, 

Megan Cavanagh, represents the defendant, Robert Hahn. However, in this 

case, he has not, as required by Michigan Const 1963, art 6, § 6, requested 

that the reason for his decision be included with the order. I further note 

that Justice Cavanagh has informed me that in the future he will request 

that his reasons for not participating be included with his decisions on the 

orders. [Hahn, supra, ___ Mich ___ (2007).]” 
 _________________________________________ 

 

_______________________________________________________________________ 

6

 KELLY, J., would grant leave to appeal. 

MARKMAN, J., not participating. 

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 justice does not have a 

reasonable opportunity to learn about a fellow justice’s recusal from a case. 

6

 My revised proposal for the 2007-2008 election cycle to reform and 

improve, not abolish, the present system of election and appointment 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 

appointment of justices for the 2005-2006 election cycle was circulated in 

2005-2006. 

7

 Scott v Flowers, 910 F2d 201, 213 (CA 5, 1990). 

d0320 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

March 23, 2007 

Clerk