TRAVERSE CITY -- Elizabeth Weaver's long battle to create new disqualification rules for Michigan Supreme Court justices finally succeeded, but the northern Michigan jurist's endeavor scraped away a barely formed scab of civility atop the state's highest court.
Weaver touted the new rules as a move toward court openness and fairness, but her three fellow Republicans on the bench forcefully disagreed and predicted changes would usher more turmoil and animosity within the seven-member court.
"This newly amended rule is a positive, historical step forward toward achieving more transparency and fairness," said Weaver, of Glen Arbor. "It's fair and right that the public can have confidence they are getting a fair shake and the justices don't have other agendas."
New rules require justices to adhere to the same standards of disqualification for bias, or the appearance of bias, that apply to appeals and trial court judges. It also sets aside a long-running court tradition that allowed individual justices to make the call on their own alleged bias.
And it could force justices to tread more carefully in how they conduct themselves in campaigns and how they associate with special interests.
Now, parties who appear before the Supreme Court can ask that the entire panel decide if a justice should step aside.
Last week's announcement, approved by a 4 to 3 count, prompted biting responses from jurists who found themselves on the short end of the vote.
"The current philosophical and personal divisions on this court are no more than a mild case of acne compared to the cancerous vitriol sure to spew from justices's pens," wrote Justice Maura Corrigan.
2008 election upset opens door to change
Weaver began to pursue the rule change in 2003 when she discovered the court followed a 173-year old disqualification tradition, instead of using written guidelines.
But her efforts gained no traction because she often found herself at odds with the other Republican justices -- Corrigan, Robert Young, Stephen Markman and then-Chief Justice Clifford Taylor. But Taylor lost his job in the November 2008 general election when he was beaten by Democrat Diane Hathaway.
Taylor's defeat upset the court's philosophical tilt -- Corrigan, Young, Markman and Taylor frequently served as a majority voting block and were dubbed "The Engler Four," because former Gov. John Engler appointed each to seats on the Supreme Court or Court of Appeals -- and opened the door for Weaver's disqualification rules plan.
She joined Chief Justice Marilyn Kelly, Hathaway, and Justice Michael Cavanagh -- all Democrats -- in adopting that rule.
Corrigan, Young, and Markman each wrote scathing dissents calling the rule an ill-conceived, hasty decision sure to precipitate a constitutional crisis and result in further "acrimony" among the justices.
Kelly responded by calling Corrigan's legal arguments "an outrageous stretch of credulity" and a "gross perversion of law."
Neither Corrigan, Markman, nor Young responded to a Record-Eagle reporter's requests for comment made through the court's press office.
Weaver called the dissenters' allegations "a lot of dramatic, fearful carrying on," designed to confuse the public.
"The fact is the new rule is constitutional and it's fair to the parties and is fair to the justices," she said.
The dissenters' group contends there is no specific constitutional authority for the court to remove justices from a case, but Weaver countered under that argument no justice or trial judge could ever be disqualified for even an obvious conflict of interest.
One aspect of the rule many agree could cause some heartburn is the change in standard from actual bias to appearance of impropriety.
"The threshold problem, of course, with the new 'appearance of impropriety' standard is its utter vagueness," Markman wrote. "An appearance of impropriety standard will subject justices to vague, subjective, and increasingly politically directed allegations of misconduct against which no justice could effectively defend himself or herself."
'Political mischief?'
Some court watchers expect the rule to get off to a rocky start as lawyers test the broader standard.
"Its good to have rules that apply to everyone and you have to hope and believe this will be done at a high level, but it does open the door for some political mischief," said 13th Circuit Court Judge Philip Rodgers of Traverse City. "This is not something that should be tainted by partisan bickering."
Rodgers said he first asks himself if he's satisfied he can be fair in hearing a case. Then, he considers whether most people who look at the situation would reach the same conclusion.
"Most of those are pretty straight forward. The closer cases are where somebody has received a significant amount of money in a political campaign," Rodgers said. "But what amount of money crosses the line?"
Rich Robinson, executive director of the nonpartisan Michigan Campaign Finance Network, said the broader standard is appropriate in an era of multi-million dollar Supreme Court elections.
Robinson expects Supreme Court justices to test the new rule with petty attempts at disqualification, but he believes that game will soon grow tiresome and the dust will settle.
"Who controls the majority of the court changes, and you can't just be taking cheap shots at one another because you have the votes today," Robinson said.
Weaver said Corrigan, Markman, and Young may fear they won't be treated fairly by their colleagues, but she's confident the court will require substantial reasons to have a justice disqualified.
"This is a start; let's give it a fair chance to work, and if it needs changes we'll see. But not because people are yelling the sky is falling," Weaver said.
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