Michigan Supreme Court 

# Order

Lansing, Michigan

April 13, 2007 Clifford W. Taylor,

Chief Justice

129241 & (31)(39) Michael F. Cavanagh

Elizabeth A. Weaver
Marilyn Kelly CHARLENE TATE, Maura D. Corrigan Robert P. Young, Jr. Plaintiff-Appellant, Stephen J. Markman,

Justices v SC: 129241

COA: 261950 CITY OF DEARBORN, Wayne CC: 04-404500-NO Defendant-Appellee.

________________ _______________ __________/

On order of the Court, l eave to appeal having been granted and the case having been briefed and argued by counsel, the ord er of January 13, 2006 wh ich granted leave to appeal is VACATED and leave to appeal is DENIED because we are no longer persuaded the question p resented should be revie wed by this Court.

In this case, plaintiff s eeks a stay of proceedings un til final disposition of pending federal litigation, wherein plaintiff’s coun sel initiated a lawsuit challenging the constitutionality of the Michigan Supreme Cour t 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, either in his capacity as a party or as an attorney on behalf of his c lients. Each of the prior motions 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); 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 asserts no new basi s 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, an d as Justices must do in connection with every mo tion for disqualification, we have each looked into our

consciences in this case and c oncluded that we are ab le to accord fair, impartial and equal treatment to plaintiff’s counsel and his clients.2

Further, the motion is pred icated on the erroneous 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 nev er been held a pplicable 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 (20 03) (statement of Weaver, J.). Throughout its history, the disqualification pr ocedure followed in the Michig an Supreme Court is similar

to the one followe d in the United States Supreme Court. See Statement of Recusal Policy, United States Suprem e Court, November 1, 1993; Laird v Tatum , 409 US 824, 833, 837; 93 S Ct 7; 34 L Ed 2d 504 (1972); Jewell Ridge Coal Corp v Local 6167 , 325 US 897; 65 S Ct 1550; 89 L Ed 2007 (1945) (Jackson, J., concurring ).

There being no new a sserted basis that would warran t a stay of proceedings, the

motion is DENIED.

The motion for recusal and for evidentiary heari ng is DENIED.

C AVANAGH , J., concurs and states as follows:

I concur with this Court’s order denyi ng leave to appeal. However, I cannot participate in the decision regarding the motio n for recusal and for an evidentiary hearing because current Court practices — with which I disagree — only allow the individual justice who is the subject of the motion to decide the motion. Thus, I can offer no opinion about the vali dity of the motio n for recusal and for an evidenti ary hearing that

was filed.

W EAVER , J., concurs in part and dissents in part and states as follows:

I concur in the Court’s order denying leave to appeal. I write further to state that I dissent from the participation of the majority of four, Chief Justice Taylor and Justices Corrigan, Young, and Markman in this cas e, where Mr. Geoffrey N. Fieger’s law firm represents the plaintiff. For my reasons in deta il, see my dissent in Grievance Administrator v Fieger, 476 Mich 231, 328-347 (2006) (W eaver 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).

I also dissent from the or der denying plaintiff’s motio n for stay of proceedings pending Mr. Fieger’s lawsuit in the United States District Cour t for the Eastern District of Michigan concerning Mi chigan’s disqualification rules fo r 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 in adequate and in ne ed of reform, which reform I have urged, 1 without success for almost 4 years, this Court to undertake action

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 p articipation 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,3

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 M CR 2.003(B)(6), we would each disqualify ourselves if our respe ctive spouses were p articipating as lawyers in this case, or if any of the other requirements of this court rule were not satis fied.” Justice Young concurred fully in th is 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 di squalification process of MCR 2.003(D). At other times, however, the same justices have not followed the provisions of MCR 2.003. For example, in Gilbert v Daimle rChrysler 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 di squalification and did not

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

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 so metimes not, it is a “tradition of secrecy” and inad equacy 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

. . . .” 2

M ARKMAN , J., concurs and states as follows:

I concur in the Court’s order denying leave to appeal. I write separately to observe

that there is more at issue in controversies involving succe ssive federal and state claims than matters of res judicata, the convenie nce of parties, judicial economy, and the avoidance of opportunities for alleged gamesmanship. Also at issue is the effect of our rules and decisions upon judi cial federalism and the extent to which, as a general proposition, federal claims should be heard in federal courts and state claims in state

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).

2 Scott v Flowers , 910 F2d 201, 21 3 (CA 5, 1990)._______________________________________ __ 4

courts. In accord, In re Certified Questions (Mel son v Prime Ins Syndicate, Inc) , 472 Mich 1225, 1231 (2005) (Markman, J., dissenting). While the federal judiciary has been specifically instructed by the United States Supreme Court to consider the effect of exercising pendent or supplement al jurisdiction upon our feder al structure, see, e.g., Aldinger v Howard , 427 US 1, 15 (1976), the state j udiciary also has an obligation to assist in preserving judicial federalism, in relevant part here through its exposition of

what does and does not constitu te res judicata where successive federal and state claims have been filed. Although the instant partie s were specifically di rected to address

“whether the interests of federalism or state sovereignty are implicated by this case,” little briefing or oral argument was submitted. I hope that the bench and bar will increasingly be prepared to assess Mi chigan court rules, s ee, e.g., MCR 2.203, a nd caselaw, see, e.g., Pierson Sand & Gravel, Inc v Keeler Brass Co , 460 Mich 372 (1999), pertaining to res judicata, in the context of federalism concerns as well as in the context of practical concerns such as the efficiency of litigation and the economical use of judicial resources.

K ELLY , J., dissents and states as follows:

I would grant the motion for stay. Rega rding the merits of the case, I would reverse the order of the Court of Appeals and reinstate the April 5, 2005, order of the Wayne Circuit Court. See Pierson Sand & Gravel, Inc v Keeler Brass Co , 460 Mich 372 (1999). I do not participate in the decision regarding the mo tion for recusal. The Court’s established procedure is to leav e the decision to the discreti on of the challenged justice. However, I continue to urge the Court to establis h and put in writing a better procedure to handle motions to disqualify a Supreme Cour t justice from participation in a case.

t0410 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 13, 2007

Clerk