New Michigan Supreme Court rules may be unconstitutional

12-23-2009 Michigan:

Imagine that Michigan voters elect Justices A and B to the state Supreme Court. The voters want A and B to decide cases. But suppose four other Justices think A and B might be biased. Over A and B's strong objections, they ignore the voters and ban Justices A and B from deciding cases.

Surprising? That's exactly how the Michigan Supreme Court's new rule on disqualification of judges works.

On Nov. 25, the high court, in a 4-3 vote led by the court's liberal wing, changed its rules on when justices should be banned from deciding cases. The old rule was that justices decided for themselves when they should be recused, which is the same way the U.S. Supreme Court does it. The new rule still allows justices to decide for themselves when to step off a case. But if a justice decides not to step down, the entire Supreme Court can second-guess the justice's decision and kick him or her off the case. The old rule took effect when the justice was in fact biased, but the new rule forces a justice off when he merely appears biased in the eyes of a majority of four other justices.

There are at least five reasons why the new rule appears to be unconstitutional:

• The rule lets justices override the voters. Four justices can now kick duly elected justices off a case. The rule wipes out citizens' votes for the removed justices, effectively increases the peoples' votes for the other justices, and appears to violate the constitutional principle of "one person, one vote." This nullifies the voice of the people by allowing four justices to decide who represents them on the court.

• The rule does not allow for a fair hearing. Before a justice is removed from his office, the Constitution's due process clause requires that the justice be given the opportunity to consult with an attorney, submit a brief, and have a fair hearing. The new rule allows for none of this.

• The rule has an impact on free speech. When justices campaign for office, they have a free speech right to announce their views on controversial legal or political issues. A four-member majority may think a justice's controversial views create an appearance of bias that requires removal. This creates a chilling effect on free speech because justices may be reluctant to speak out of fear of getting kicked off of cases.

• Removal is only permitted in certain situations. The Michigan constitution permits removal of a justice in three ways (other than by electoral defeat): impeachment; a two-thirds vote of the Legislature; or by Judicial Tenure Commission recommendation. The rule allows justices to kick other justices off of cases, which is a temporary removal from office. There is no constitutional authority for this new, fourth way of removal.

• The rule could create a court with only four members. The Michigan constitution requires that the Supreme Court have seven members. The rule allows a majority of four justices to remove other justices even over their objections. We could have a 6, 5, or 4-member court deciding a case. A future liberal or conservative majority could secure their preferred outcome by "voting off" judges who hold different views.

Unfortunately, the court rejected a series of well-crafted amendments sponsored by Justice Robert Young that would have cured some of the rule's constitutional ailments. That debate should be the court's next order of business. ..Source.. Matthew Schneider is a visiting professor at the Thomas M. Cooley Law School in Lansing, where he teaches constitutional law