D.Grounds for Disqualification
This subsection sets out the grounds for judicial disqualification. Cases and other authorities discussing specific factual situations involving these grounds are discussed in Part II.
Under MCR 2.003(C)(1), “[d]isqualification of a judge[1] 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.[2]
(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 minimus 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 more than a de minimus interest that could be substantially affected by the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.”
If any of the reasons for disqualification exist, a judge must sign an order of disqualification. See SCAO Form MC 264, Order of Disqualification/Reassignment.3
A more detailed description of the procedural requirements of some of the grounds for disqualification is set out in the following sub-subsections.
Judicial disqualification is warranted under MCR 2.003(C)(1)(a) where “[t]he judge is biased or prejudiced for or against a party or attorney.”
“[MCR 2.003(C)(1)(a)4] requires a showing of actual bias. Absent actual bias or prejudice, a judge will not be disqualified pursuant to [MCR 2.003(C)(1)(a)].” Cain v Dep’t of Corrections, 451 Mich 470, 495 (1996). “[T]he party who challenges a judge on the basis of bias or prejudice must overcome a heavy presumption of judicial impartiality.” Id. at 497.
“[T]he party moving for disqualification bears the burden of proving actual bias or prejudice.” People v Bero, 168 Mich App 545, 549 (1988). “Disqualification on the basis of bias or prejudice cannot be established merely by repeated rulings against a litigant, even if the rulings are erroneous. Further, while personal animus toward a party requires disqualification, . . . [a] generalized hostility toward a class of claimants does not present disqualifying bias. Further, a trial judge’s remarks made during trial, which are critical of or hostile to counsel, the parties, or their cases, ordinarily do not establish disqualifying bias.” In re MKK, 286 Mich App 546, 566-567 (2009) (internal citations omitted).
There is no “rule of automatic disqualification solely because a judge has sat as a factfinder in a prior trial. . . . [U]nless there are special circumstances which increase the risk of unfairness, disqualification of a trial judge as factfinder in the second trial is not required solely because the trial judge sat as factfinder in the first trial.” People v Upshaw, 172 Mich App 386, 389 (1988). Additionally, “the mere filing of a party’s or attorney’s complaint is [not] sufficient to require automatic disqualification.” Bero, 168 Mich App at 552. Rather, “disqualification is not required until the judge is privately censured or a complaint is filed by the Judicial Tenure Commission itself.” Id.
b.Serious Risk of Actual Bias or Appearance of Impropriety
Judicial disqualification is warranted under MCR 2.003(C)(1)(b) where “[t]he 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.”
“The Due Process Clause requires an unbiased and impartial decisionmaker. Thus, where the requirement of showing actual bias or prejudice under [MCR 2.003(C)(1)(a)5] has not been met, or where the court rule is otherwise inapplicable, parties have pursued disqualification on the basis of the due process impartiality requirement.” Cain v Dep’t of Corrections, 451 Mich 470, 498 (1996). However, “[d]isqualification pursuant to the Due Process Clause is only required ‘in the most extreme cases.’” In re MKK, 286 Mich App 546, 567 (2009), quoting Cain, 451 Mich at 498.
“Due process principles require disqualification, absent a showing of actual bias or prejudice, ‘in situations where experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’” MKK, 286 Mich App at 567, quoting Cain, 451 Mich at 498. The inquiry is an objective one that focuses on whether, “under a realistic appraisal of psychological tendencies and human weakness, the [judicial] interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Caperton v Massey, 556 US 868, 883-884 (2009) (quotation marks and citation omitted).
Caperton, 556 US at 872, involved a situation where “the Supreme Court of Appeals of West Virginia reversed a trial court judgment, which had entered a jury verdict of $50 million”; “[f]ive justices heard the case, and the vote to reverse was 3 to 2.” The United States Supreme Court held that “the Due Process Clause of the Fourteenth Amendment was violated when one of the justices in the majority denied a recusal motion,” where “[t]he basis for the recusal motion was that the justice had received campaign contributions in an extraordinary amount from, and through the efforts of, the board chairman and principal officer of the corporation found liable for the damages.” Id. The Court reiterated that “[u]nder our precedents there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,’” and held that “[a]pplying those precedents . . . in all the circumstances of the case, due process requires recusal.” Id., quoting Withrow v Larkin, 421 US 35, 47 (1975). Specifically, the Court “conclude[d] that there is a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent,” and “applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required [the justice’s] recusal.” Caperton, 556 US at 884, 886. Moreover, “objective standards may . . . require recusal whether or not actual bias exists or can be proved,” and “[t]he failure to consider objective standards requiring recusal is not consistent with the imperatives of due process.” Id. at 886. However, the Court noted that “[t]he Due Process Clause demarks only the outer boundaries of judicial disqualifications. . . . Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution[, and a]pplication of the constitutional standard implicated in [Caperton] will thus be confined to rare instances.” Id. at 889-890 (quotation marks and citation omitted).
“Among the situations identified by the [United States Supreme] Court as presenting . . . [a] risk [of actual bias that is too high to be constitutionally tolerable] are where the judge or decisionmaker
(1) has a pecuniary interest in the outcome;
(2) ‘has been the target of personal abuse or criticism from the party before him’;
(3) is ‘enmeshed in [other] matters involving petitioner . . . ‘; or
(4) might have prejudged the case because of prior participation as an accuser, investigator, factfinder or initial decisionmaker.” Crampton v Dep’t of State, 395 Mich 347, 351 (1975).6
Judge’s failure to recuse where recusal was warranted but no serious risk of actual bias. See People v Loew, ___ Mich ___, ___ (2024), where the Michigan Supreme Court determined that the trial judge violated Canon 3(A)(4)(a) of the Michigan Code of Judicial Conduct by initiating ex parte communications with the prosecutor during a sexual assault jury trial about deficiencies in the police investigation of the case. Although the Court held that the judge ought to have recused herself due to the appearance of impropriety under MCR 2.003(C)(1)(b)(ii) and in violation of Canon 2(A), these ex parte communications “[did] not show [the judge] was actually biased or that there was an unconstitutionally high probability she was actually biased . . . .” Loew, ___ Mich at ___.
ii.Appearance of Impropriety
“Under MCR 2.003(C)(1)(b), the test for determining whether there is an appearance of impropriety is whether the 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.”Kern v Kern-Koskela, 320 Mich App 212, 232 (2017) (quotation marks and citations omitted).
The appearance of impropriety standard “cannot be equated with any person’s perception of impropriety, lest a judge find himself or herself subject to a barrage of recusal motions on the part of any person who apprehends an impropriety, however unreasonable this apprehension. Rather, this standard must be assessed in light of what can be gleaned from existing court rules and canons, historical practices and expectations, and common sense.”Adair v Michigan, 474 Mich 1027, 1039 (2006). The standard requires an objective inquiry “made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Id. (quotation marks and citation omitted).
See e.g., People v Loew, ___ Mich ___ (2024):
“[E]ven 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. Canon 2(A) states that a judge must avoid all impropriety and appearance of impropriety. To decide whether a judge has failed to avoid the appearance of impropriety, we 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 ___ (cleaned up).
In Loew, the trial judge violated Canon 3(A)(4)(a) of the Michigan Code of Judicial Conduct by initiating ex parte communications with the prosecutor during a sexual assault jury trial involving deficiencies in the police investigation of the case. Loew, ___ Mich at ___. The Court held that the judge ought to have recused herself due to the appearance of impropriety under MCR 2.003(C)(1)(b)(ii): “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 . . . .’” Loew, ___ Mich at ___, quoting United States v Minsky, 963 F2d 870, 874 (CA 6, 1992) (alteration in original).
“This is not to suggest that one instance of ex parte communications always requires a judge to disqualify herself,” as “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.” Loew, ___ Mich at ___. Here, however, the “ex parte exchange with [the prosecutor] was not about some matter unrelated to defendant or his trial,” and “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 ___. “For that reason, the trial judge should have known that grounds for her disqualification might have existed under MCR 2.003(C)(1)(b)(ii),” and “[u]nder Canon 3(C), she should have raised the issue of her disqualification sua sponte, and . . . recused herself.” Loew, ___ Mich at ___.
However, “the canons do not grant litigants any substantive or procedural rights.” Id. at ___. Consequently, a judge’s failure to recuse herself under MCR 2.003(C)(1)(b)(ii) is a “nonconstitutional error” that alone does not create a legal basis to grant a new trial under MCR 6.431(B). Loew, ___ Mich at ___. Rather, the court must consider whether a new trial is warranted under MCL 769.26 because “the error resulted in a miscarriage of justice.” Loew, ___ Mich at ___ (quotation marks omitted). “[U]nder MCL 769.26 and our precedent interpreting it, a miscarriage of justice occurs only when a nonconstitutional error affected the finder of fact.” Loew, ___ Mich at ___. Because “[t]his was not a bench trial, and there is no dispute that the jury was unaware of the trial judge’s ex parte communications,” the judge’s failure to recuse herself “did not result in a miscarriage of justice under MCL 769.26 because it had no effect on the finder of fact.” Loew, ___ Mich at ___.
2.Disqualification Not Warranted
a.Former Law Clerk Attorney of Record
“A judge is not disqualified merely because 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).
“A judge is not disqualified based solely upon campaign speech protected by Republican Party of Minn v White, 536 US 765 (2002), so long as such speech does not demonstrate bias or prejudice or an appearance of bias or prejudice for or against a party or an attorney involved in the action.” MCR 2.003(C)(2)(b).
1 For purposes of MCR 2.003, “[t]he word ‘judge’ includes a justice of the Michigan Supreme Court.” MCR 2.003(A).
2 If you are a newly elected/appointed judge and were previously a prosecutor or city attorney, it is advisable to disclose such and to execute a waiver during your first two years on the bench. See State Bar of Michigan Ethics Opinion JI-34 (December 21, 1990), for more detailed information.
3 Note: disqualification from hearing an attorney’s case will likely require future disqualification.
4 Formerly MCR 2.003(B)(1).
5 Formerly MCR 2.003(B)(1).
6 For case examples, see Part II. Note, however, that the situations described in Crampton, 395 Mich at 351 must be interpreted narrowly. Cain, 451 Mich at 500 n 36. In explaining Crampton, the Cain Court stated: “Importantly, we recognize the amorphous nature of the situations listed in Crampton as 1 through 4; therefore, an analysis of the examples given as illustrative of each particular situation is critical. These situations are not to be viewed as catch-all provisions for petitioners desiring disqualification. On the contrary, we find these situations to be factually specific on the basis of the examples given. Thus, we interpret the test and scenarios outlined in Crampton narrowly. However, this is not to say that the Crampton list is exclusive.” Cain, 451 Mich at 500 n 36.