Due process requires an unbiased and impartial decisionmaker. Cain v Dep’t of Corrections, 451 Mich 470, 497 (1996). “A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B).” Code of Judicial Conduct, 3(C). However, “a judge’s violation of the Michigan Code of Judicial Conduct is not a legally recognized basis for [granting a new trial].” People v Loew, ___ Mich ___, ___ (2024) (stating that “the canons do not grant litigants any substantive or procedural rights”). In addition, a party may ask a judge to disqualify (recuse) himself or herself. MCR 2.003(C)(1) sets out a nonexhaustive list of grounds for the disqualification of a judge. Under MCR 2.003(C)(1)(b)(i), disqualification of a judge is warranted if, “based on objective and reasonable perceptions,” the judge has “a serious risk of actual bias impacting the due process rights of a party” as set forth in Caperton v Massey, 556 US 868 (2009). Loew, ___ Mich at ___, quoting MCR 2.003(C)(1)(b)(i). “Due process does not require a judge to recuse herself unless a judge is actually biased, or, if there is no evidence that the judge is actually biased, unless the situation is one in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Loew, ___ Mich at ___ (quotation marks and citations omitted).
“Under the Due Process Clause [of the Fourteenth Amendment of the United States Constitution] there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.” Williams v Pennsylvania, 579 US ___, ___ (2016). “No attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision[, and w]hen a judge has served as an advocate for the State in the very case the court is now asked to adjudicate, a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome.” Id. at ___ (holding that where a state supreme court justice was formerly involved in a case as the prosecutor and had given his official approval to seek the death penalty against the defendant, the justice’s failure to recuse himself from postconviction proceedings in which the defendant sought relief from his conviction and death sentence constituted reversible constitutional error).
“[A]n unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote.” Williams, 579 US at ___ (quoting Puckett v United States, 556 US 129, 141 (2009), and holding that “a due process violation arising from the participation of an interested judge is a defect ‘not amenable’ to harmless-error review, regardless of whether the judge’s vote was dispositive[]”) (alteration in original).
However, “even if due process does not require a judge to recuse herself, MCR 2.003(C)(1)(b)(ii) may still require a judge to disqualify herself if the judge, based on objective and reasonable perceptions, has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.” Loew, ___ Mich at ___ (cleaned up). MCJC 2(A) requires judges to “avoid all impropriety and appearance of impropriety.” Loew, ___ Mich at ___. “To decide whether a judge has failed to avoid the appearance of impropriety,” Michigan courts “consider whether the judge’s conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” Loew, ___ Mich at ___ (quotation marks and citation omitted). In other words, courts “consider whether an ordinary person might reasonably question the judge’s integrity, impartiality, or competence on the basis of the judge’s observable conduct.” Id. at ___. “There is a strong presumption of judicial impartiality, and a party arguing otherwise bears a heavy burden to rebut this presumption.” Id. at ___.
In Loew, the trial judge exchanged several e-mails with the county prosecutor discussing testimony given by two law enforcement officers during defendant’s jury trial. Id. at ___. “In her e-mails, the trial judge expressed concern about mistakes law enforcement had made in its investigation and asked questions related to why those mistakes had occurred.” Id. at ___. “The trial judge never notified defendant or defense counsel of these e-mails or their contents.” Id. at ___. The Loew Court determined that “the trial judge commenting about the trooper’s investigation, asking whether the Michigan State Police has detectives, and asking why the victim was not referred for a medical examination were not ‘communications for administrative purposes,’ at least not as that phrase is used in [MCJC 3(A)(5)(a)29].” Loew, ___ Mich at ___ (cleaned up). “[MCJC 3(A)(5)30] prohibits a judge from communicating with a party to a legal proceeding outside the presence of opposing counsel in most instances.” Loew, ___ Mich at ___ (noting that “the trial judge’s violation of this canon is relevant to deciding whether she failed to adhere to the appearance-of-impropriety standard”). “In a word, a judge may not initiate, permit, or consider ex parte communications, but a judge may allow ex parte communications for administrative purposes, so long as the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage and the judge promptly discloses the communication.” Id. at ___ (quotation marks omitted) (“Because the trial judge’s ex parte communications with [the prosecutor] were not made for the purpose of managing or executing a pending or impending proceeding, they violated [MCJC 3(A)(5)(a)31].”).
“No matter the content of the ex parte communications, it is a gross breach of the appearance of justice when a party’s principal adversary is given private access to the ear of the court[.]” Id. at ___ (cleaned up). “This is not to suggest that one instance of ex parte communications always requires a judge to disqualify herself.” Id. at ___ (noting that recusal is required only when the ex parte communication threatens the judge’s impartiality). “Depending on the circumstances, a brief ex parte exchange concerning a matter unrelated to the defendant or the proceeding might not create in reasonable minds a perception that the judge is biased.” Id. at ___.
The Loew Court held “that an ordinary person might still reasonably question her impartiality” even though “the trial judge’s communications [did] not show she was actually biased or that there was an unconstitutionally high probability she was actually biased . . . .” Id. at ___. Importantly, the trial judge’s ex parte communications with the prosecutor “was not about some matter unrelated to defendant or his trial.” Id. at ___. “In response to witness testimony, while presiding over defendant’s trial, the trial judge privately e-mailed [the prosecutor] expressing concern about law enforcement’s missteps in its investigation of defendant’s case specifically and asking why these missteps occurred.” Id. at ___. “Not only did the trial judge give [the prosecutor] private access to her ear, considering the contents of her communications, one might reasonably question whether the trial judge was interested in seeing the prosecution succeed or seeing defendant convicted.” Id. at ___ (quotation marks omitted) (holding that “the trial judge’s private exchange with the elected prosecutor violated the Michigan Code of Judicial Conduct”). Thus, “the trial judge should have known that grounds for her disqualification might have existed under MCR 2.003(C)(1)(b)(ii).” Loew, ___ Mich at ___. Pursuant to MCJC 3(C), the trial judge “should have raised the issue of her disqualification sua sponte and she should have recused herself” under MCR 2.003(C)(1)(b)(ii). Loew, ___ Mich at ___. The Loew Court opined that “[t]he trial judge’s actions fell short of the high ethical standards that Michigan jurists are expected to uphold, and regrettably, her behavior has the potential to erode public confidence in the integrity of our justice system.” Id. at ___ (holding defendant was not entitled to a new trial under MCR 6.431(B) because “the trial judge’s failure to recuse herself did not result in a miscarriage of justice at defendant’s trial or deprive defendant of any constitutional right”).
For a more detailed discussion on judicial disqualification, see the Michigan Judicial Institute’s Judicial Disqualification in Michigan.