K.Caselaw: Disqualification Required

Ex Parte Communication with Prosecutor Initiated by the Judge

•Judge violated the appearance-of-impropriety standard under Canon 2(A) by initiating communication with prosecutor about deficiencies in the police investigation of the case, and therefore, should have recused herself under MCR 2.003(C)(1)(b)(ii).

“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.” People v Loew, ___ Mich ___, ___ (2024). “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 and citation omitted). “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). Under Canon 3(C), she should have raised the issue of her disqualification sua sponte, and she should have recused herself.” Loew, ___ Mich at ___.

Financial Interest in Case

•Judge was also the mayor and was directly compensated from fines collected by court.

“[T]he village mayor could not sit as judge on ‘the liquor court’ where he was directly compensated out of fines collected for violation of the state prohibition act.” Crampton v Dep’t of State, 395 Mich 347, 351-352 (1975), citing Tumey v Ohio, 273 US 510 (1927). “Even though the Mayor . . . was not personally compensated out of traffic fines, the [United States Supreme] Court held that because he was responsible for village finances he could not fairly adjudicate and impose fines for traffic offenses. Such responsibility might ‘make him partisan to maintain the high level of contribution from the mayor’s court.’” Crampton, 395 Mich at 352, citing Ward v Monroeville, 409 US 57, 60 (1972).

•MSC Justice had an economic interest in the matter.

In accordance with MCR 2.003(C)(1)(f), a former Michigan Supreme Court Justice disqualified herself from participating in a case due to “a vested financial interest in . . . the subject matter of [the] litigation.” Butler v Wayne Co, 488 Mich 1055 (2011).

Personal Feelings About Attorney or Party

•Judge was the target of personal abuse or criticism from a party to the case.

“[W]here a trial judge had been insulted, slandered and vilified during trial by a defendant representing himself[,] he could not adjudicate post-judgment contempt proceedings against the defendant. The [United State Supreme] Court found that while the judge ‘was not an activist seeking combat,’ he had become ‘embroiled in a running, bitter controversy’ and was not ‘likely to maintain that calm detachment necessary for fair adjudication.’” Crampton, 395 Mich at 352, citing Mayberry v Pennsylvania, 400 US 455, 465 (1971).¹

Personal Relationship With Attorney, Judicial Officer, Party, or Witness

•MSC Justice was related to an attorney in the matter.

In accordance with MCR 2.003(C)(1)(g)(ii), two Michigan Supreme Court Justices have disqualified themselves from participating in a case because they were related to a party’s attorney. See Marrocco v Oakland Macomb Interceptor Drain Drainage Dist, 500 Mich 980 (2017); Neal v Dep’t of Corrections, 490 Mich 906, 909 (2011).

•MSC Justice had a personal relationship with a party.

In accordance with MCR 2.003(C)(1)(b), one Michigan Supreme Court Justice has recused herself from a case “based on a personal relationship with one of the plaintiffs which, in [her] judgment, [gave] rise to an appearance of impropriety.” Neal, 490 Mich at 909.

•Judge lost civil rights suit brought by litigant.

“It was not appropriate for a losing judge in a civil rights suit to adjudicate criminal contempt charges against the individual who won the suit against the judge. Crampton, 395 Mich at 353, citing Johnson v Mississippi, 403 US 212, 215-216 (1971).

Prior Involvement in the Case

•Judge was the former prosecutor in the case.

“[U]nder 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 1, 8 (2016). “The involvement of multiple actors and the passage of time do not relieve [a] former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion”; “[n]o 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 9, 11. In addition, there is “a risk that the judge would be so psychologically wedded to his or her previous position that the judge would consciously or unconsciously avoid the appearance of having erred or changed position.” Id. at 9 (quotation marks and citation omitted). Finally, “the judge’s own personal knowledge and impression of the case, acquired through his or her role in the prosecution, may carry far more weight with the judge than the parties’ arguments to the courts.” Id. (quotation marks and citation omitted). See also Crampton, 395 Mich at 347² (“officials who are entrusted with responsibility for arrest and prosecution of law violators [cannot] sit as adjudicators in a law enforcement dispute between a citizen and a police officer” because “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable”).

•Judge reviewed on appeal a case the judge had formerly presided over.

“The circuit court judge committed an error when he reviewed on appeal, as a circuit judge, decisions that he rendered while acting as a district court judge.” People v Ward, 501 Mich 949 (2018).