7.1Is Disqualification an Issue?

“Disqualification of a judge is warranted for reasons that include, but are not limited to, the following:

(a) The judge is biased or prejudiced for or against a party or attorney.

(b) The judge, based on objective and reasonable perceptions, has either

(i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey, 556 US 868 [(2009)], or

(ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.

(c) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

(d) The judge has been consulted or employed as an attorney in the matter in controversy.

(e) The judge was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years.

(f) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has more than a de minimis economic interest in the subject matter in controversy that could be substantially impacted by the proceeding.

(g) The judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; or

(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.” MCR 2.003(C)(1).

A judge is not automatically disqualified when “the judge’s former law clerk is an attorney of record for a party in an action that is before the judge or is associated with a law firm representing a party in an action that is before the judge.” MCR 2.003(C)(2)(a).

“Parties to the proceeding may waive disqualification even where it appears that there may be grounds for disqualification of the judge. Such waiver may occur whether the grounds for disqualification were raised by a party or by the judge, so long as the judge is willing to participate. Any agreement to waive the disqualification must be made by all parties to the litigation and shall be in writing or placed on the record.” MCR 2.003(E).

“In reviewing a motion to disqualify a judge, [the Michigan Court of Appeals] reviews the trial court’s findings of fact for an abuse of discretion, and reviews the court’s application of those facts to the relevant law de novo.” In re Contempt of Henry, 282 Mich App 656, 679 (2009).

For more information on judicial disqualification, including examples of situations involving disqualification, see the Michigan Judicial Institute’s book, Judicial Disqualification in Michigan. See also the Michigan Judicial Institute’s checklist and flowchart on judicial disqualification.