Michigan Supreme Court 

# Order

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 LA BOR & 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 consid ered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

W EAVER , 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 supp lied no reasons for his decision not to participate.

Although I specifically reque sted Justice Markman’s reas ons for not p articipating in this case, he refused to provide them in writing or verbally—stating to me at

conference that it was “n one of your business”—for his not participating in this case.

My request that Justice Markman give reasons on th e record for his nonparticipation is not trivial. Nor is it mo tivated by resentment or personal ill will. A justice has a duty to supply the parties, the public and th ereby future litigants with his or her reasons for nonparticipation.

Where, as here, a justice decides on his ow n motion not to partic ipate in a case, the justice should be accountable to the parties and th e public for his d ecision. Although Justice Markman has taken the time to personally attack me in this case, he still has not given his reasons for not partic ipating. While his reasons lik ely support his decision to2

not participate, his decision needs to be in writing, on the record, and available to the parties, the public, a nd thereby future litigants. 1

1 For a detailed discussion of why it is necess ary for a justice recu sing himself/herself from a case to provide written reasons for hi s/her decision, see my statement in People v

Parsons , unpublished order of the Supreme Court, entered March 6, 2007 ( Docket No. 132975), provided below:

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

I concur with the order to stay tr ial court proceedings in this case and write separately to state again that a ju stice has a duty to supply the public, and thereby future litigants, w ith 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, 8 54 (2005) (Weaver, J., dissenting):

“Const 1963, art 6, § 6, which st ates 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

decisions to be accessible to the citizen s 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 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 ju stices. 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 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 jus tice recusal almost four (4) years ago when, in In re JK, 468 Mich 202 (2003) (a termin ation of parental rights and reversal of adoption case, not in volving attorney Geoffrey Fieger), I had reason to examine the rules govern ing my own 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 was3

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 unwritten 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.]”

Thus, any assertion that my position on justice recu sals is new, or began with attorney Fieger’s motion to disq ualify “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 fo r my decision not to recuse myself, attorney Fieger made no further disqualifi cation motions against me, although attorney Fieger has contin ued to make disqualificat ion motions against “the majority of four.” See Gilbert v DaimlerChrysler Corp , 469 Mich 883, 889 (2003) (Weaver, J., participating in p art and voting to grant reconsideration in part).

It is also untrue that my positi on 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 import ance of providing the reasons for nonparticipation to Justice Cavanagh, most recently in

White v Hahn , ___ Mich ___ (2007) (Docke t No. 132191), a case in which Justice Cavanagh’s daughter represents one of the parties. 4

In Hahn, supra, I noted that Justice Cava nagh had not included his reason for recusal, but had in formed me he would do so in future cases. Further, Justice Kelly has also indicated to me that in the future, she will4

request that her reasons for not particip ating be included w ith 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 ad equate notice of justice recusals. Given the current “helter-skelter” approach to handli ng 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 commissi oner 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 asserti ons by concurring justi ces are simply incorrect and untrue. For instance: my relia nce on art 6, § 6 of the Michigan

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

which is issued as a “decision of th e Supreme Court,” not just from one justice. Further, I have no propos al 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 bedr ock principle of our judicial system— the impartiality of the ju diciary. Without a record of a justice’s reasons to not participate in a case, how can fu ture litigants be gu aranteed 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 refu sing to work on a case to avoid some controversy that th e 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-m aking, and ensures the public’s, and thereby future litigants’, trust and c onfidence in the judiciary. Thus, preserving the impartiality of the Cour t is “real work of the Court.”

What are needed are clear, fair, enforceable, written, and published rules concerning the partic ipation, nonparticipation, or disqualif ication of justices. Such rules would enhance the accountability of justices to the public. They would provide a way for the public to have some knowledge5

about how justices conduc t 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 impar tial judiciary is “ill served by casting a cloak of secrecy around the operations of the courts . . . .” 7

________________ ______________

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 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 MC R 2.003 that would require that a justice publish in the record of the case the reas ons for the decision to participate or not particip ate in the case when the issue of disqualification was raised by a party, the justice himself or herself, or another justice. I

further outlined th e procedure 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 order 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).]”_______________________________________ __ ___________________ ____________________________________ ________________ 6

K ELLY , J., would grant leave to appeal.

M ARKMAN , J., not participating.

5 In addition, when jus tice “non-hold memos” a ssociated with orders

scheduled to enter are recei ved monthly in large batches, with sometimes

less than a week b efore 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 lim its for justices, w ill be published on my personally funded website, <www.j usticeweaver.com>, this year, 2007. My similar proposal to reform and im prove, not abolish, the election and appointment of justices for the 2005-2 006 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 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 23, 2007

Clerk