When I was clerking in Louisiana after graduating from law school, there was story of a rather notorious local judge asking counsel in a criminal case if he was ready to present the case of the defendant. He then asked the prosecutors “and are we ready to present our case?”
The story came to mind recently with a controversy in Michigan where the Chief Judge of Michigan’s Court of Claims Elizabeth Gleicher said that she will preside over a challenge to an abortion law brought by Planned Parenthood despite her previously representing the group and her annual contributions to the group.
Gleicher was appointed by Gov. Jennifer Granholm (D-Mich) in 2007 after a long legal career as private counsel. She was randomly selected for the challenge brought by Planned Parenthood of Michigan to preemptively block enforcement of the state’s ban on abortions that was passed in 1931. That law has been treated as dormant given the 1973 decision in Roe v. Wade. However, with the Supreme Court considering a challenge to Roe and its progeny, the group wants to ensure that the 1931 law cannot come roaring back to life.
According to The Detroit News, Gleicher issued a statement that
“Judge Gleicher asked me to notify all counsel of record that she makes yearly contributions to Planned Parenthood of Michigan . . . and she represented Planned Parenthood as a volunteer attorney for the ACLU in 1996-1997. While Judge Gleicher does not believe this warrants her recusal, and is certain that she can sit on this case with requisite impartiality and objectivity, she believes that this letter of disclosure is appropriate.”
To her credit, Judge Gleicher was right to issue the statement and let the parties know of the possible conflict. It is a difficult issue. Gleicher represented the group decades ago. A reasonable jurist could question whether such a long passage of time should still disqualify her from a case.
My concern is the combination of the past representation and the annual contributions to the group. That does strike me as, at a minimum, of meeting the standard of an appearance of a conflict of interest.
Under Rule 2.003, the grounds for disqualification 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]; 129 S Ct 2252; 173 L Ed 2d 1208 (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.
…
(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…”
However, there is an interesting wrinkle. Under Rule 2.003(B), disqualification motions can only be filed by parties. The problem is that this is an engineered appeal with pro-choice parties on both sides. Planned Parenthood of Michigan already said it will not challenge Gleicher’s assignment and its medical officer (who is also a party) is not expected to do so.
On the other side is Attorney General Dana Nessel (D-Mich.), an ardent pro-choice politician who is tasked with defending the law. She has already said that she does not want to defend the law despite her statutory duty to do so.
Nessel (who has been previously criticized on this blog for her highly politicized approach to her office) has refused to take any steps to guarantee that the law is defended to allow both sides to be equally presented before the Court. She declared:
“I don’t want to use the resources of my offices and I don’t think I should be made to use the resources of my office to enforce a law that I know will result in women dying in this state,. I didn’t become attorney general so I could head an office that put women in a position in which some of them would likely die.”
That means that, not only will no party challenge Judge Gleicher, but there is currently no party willing to zealously defend the law.
Nessel has an obligation to at least appoint outside counsel to defend the law. The question is whether Judge Gleicher has a duty to recuse herself. Judges are subject to the Canons of Judicial Ethics.
Canon 2 of the Judicial Code of Conduct instructs judges to avoid even the appearance of conflicts or bias. “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s … impartiality as a judge is impaired.”
Canon 3 states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” That includes cases where “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
Judge Gleicher has long been associated with Planned Parenthood and pro-choice advocacy. She discussed the importance of that litigation to her career in an interview at Wayne State University:
I actually do not question Judge Gleicher’s belief that she can rule fairly in the case. This is a presumptively unconstitutional law and there are threshold procedural issues on the basis for a challenge.
However, Judge Gleicher should see the obvious appearance of a conflict given her contributions and history. She should recuse herself in my view.
Notably, there has not been a hue and cry for disqualification by the experts clamoring for recusal, resignation, or even impeachment of Justice Clarence Thomas due to his wife’s political advocacy. That, however, was based on the fact that his wife engaged in protected speech and sent messages that were already in the possession of Congress. While I saw the good-faith arguments for recusal in a January matter, I did not see the basis for the sweeping recusals demanded by legal experts. Most of those experts, however, are now silent with regard to Judge Gleicher.
Even if Gleicher will not recuse herself, Nessel needs to show a modicum of principle and appoint someone who will defend this law and independently decide whether to file a motion for disqualification.