Supreme Court DQ Rule: A Glass Half Empty

By Rich Robinson

The new rule adopted by the Michigan Supreme Court that specifies grounds and procedures for disqualification of a justice whose impartiality in a case is legitimately in question is a well-reasoned response to the contemporary realities of judicial election campaigns.

In Michigan and a number of states across the country, interest groups and wealthy individuals have spent extraordinary amounts in an effort to elect judges whom they believe will be sympathetic to their interests. Then, these same interest groups and individuals appear in court before the judge they supported, looking for a favorable ruling.

A West Virginia case provides a particularly outrageous example of this trend. In that case, Don Blankenship, the CEO of Massey Coal Company, contributed $3 million to an “issue” campaign that successfully defined an incumbent West Virginia Supreme Court justice as unsuitable for office. Subsequently, Blankenship’s preferred candidate, new Justice Brent Benjamin, cast the deciding vote to overturn a $50 million damage judgment against Blankenship’s company.

Justice Benjamin’s refusal to disqualify himself from the case, known as Caperton v. Massey Coal Company, was appealed to the United States Supreme Court. They ruled that Benjamin’s participation in the case deprived Massey’s legal opponent of his due process right to an impartial court hearing.

In writing for the majority in that case, Justice Anthony Kennedy noted that “the States may have codes of conduct with more rigorous recusal standards than due process requires.”

The Michigan Supreme Court’s new disqualification rule sets a standard for judicial disqualification that is higher than deprivation of a litigant’s due process rights. It says that disqualification is warranted if there is an objective and reasonable perception of a high probability of bias.

That squares with Michiganders’ values. Public opinion research in March of this year found that 85 percent of Michigan voters believe a judge should not hear a case that involves a major financial supporter of the judge’s election.

The new Michigan Supreme Court disqualification rule is path-breaking in another way. If a justice is so obstinate as to refuse to disqualify himself in the face of all reason, as Justice Benjamin was in West Virginia, a Michigan justice’s refusal can be appealed for review by the remaining justices of the Court. That also squares with public values. Our polling found that only seven percent of Michigan voters believe that a judge who is asked to stand aside because of potential bias should have the final say in the matter. Eighty-six percent believe some other judge should have the final word.

As positive a development as this new Supreme Court disqualification rule is, it is only necessary, not sufficient, to address concerns about impartiality caused by judicial campaign finances. That is because Michigan does not require the interest groups and individuals who finance the majority of judicial campaign advertising to disclose their activity. We have a bizarre ‘don’t ask, don’t tell’ policy regarding contributors to candidate-focused issue advertising. If advertisements merely define a candidate’s suitability for office but don’t exhort a vote, the sponsoring organization doesn’t have to report whose money is being spent. In the $7.5 million Supreme Court campaign of 2008, $3.8 million bought television issue ads. We know the aggregators of that money, but not the contributors. With this being the case, we can’t know when a justice legitimately should be asked to recuse himself from a case.

This is a cue for the legislature to act to bring full disclosure and integrity to our political campaigns. Transparency and accountability are conservative values, and they are progressive values. Campaign accountability is good for democracy and good for impartial justice.

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