III. ANALYSIS

Superintending control is an extraordinary remedy. See

People v Burton, 429 Mich 133, 139 (1987) (exercising superintending control is invoking an “extraordinary power“). Our Court employs this authority only if a “lower court failed to perform a clear legal duty.” See ; see also MCR 3.302(B);² , (On Rehearing), (refusing to issue a writ of mandamus because a lack of constitutional authority prevented the Court from having a clear legal duty to order disbursal of funds).

In light of the facts described above, it is obvious that the chief judge has not neglected this matter. Contract negotiations are ongoing about these issues in the Wayne Circuit Court. Defendant had no clear legal duty to issue an order, which would permit progress only through litigation. This Court‘s order will short-circuit these negotiations. Plaintiff has not demonstrated a violation of a clear legal duty on this record.

IV. CONCLUSION

By ordering defendant to enter an order disposing of plaintiff‘s claim within 28 days, our Court essentially requires plaintiff and the circuit court to resolve this contract matter by litigation. Defendant had no clear legal duty to issue an order because she stated that contract discussions, rather than adjudication, might address the matter. The chief judge has undertaken contract negotiations in which plaintiff has participated. Thus, I respectfully dissent.

YOUNG, J. I join the statement of Justice CORRIGAN.

GRIEVANCE ADMINISTRATOR v FIEGER

No. 127547

Supreme Court of Michigan

June 1, 2006

Motion to Disqualify Denied June 1, 2006:

The motions for disqualification of Justices CORRIGAN and MARKMAN are denied.

WEAVER, J. I do not participate in the decisions regarding the motions to disqualify Justice CORRIGAN and Justice MARKMAN.

On February 20, 2006, the Committee to Re-elect Justice MAURA CORRIGAN sent out a fundraising letter from former Governor John Engler stating:

We cannot lower our guard should the Fiegers of the trial bar raise and spend large amounts of money in hopes of altering the election by an 11th hour sneak attack.

This statement was one of the grounds listed in the motion for disqualification filed against Justice CORRIGAN by the respondent, Geoffrey Fieger. I do not participate in deciding respondent‘s motion to disqualify Justice CORRIGAN.

This Court should publish proposals for public comment, place the issue on a public hearing for administrative matters, resolve, and make clear for all to know the proper procedures for handling motions for the recusal of Supreme Court justices from participation in a case. See

Scalise v Boy Scouts of America, 473 Mich 853 (2005). This Court opened an administrative file on the question on May 20, 2003, but has yet to address the matter. See ADM 2003-26.

The question regarding the participation or nonparticipation of justices frequently recurs and is a matter of public significance because even one justice‘s decision to participate or not participate may affect the decision and outcome in a case. See

Advocacy Org for Patients & Providers v Auto Club Ins Ass‘n, 472 Mich 91, 96-104; 693 NW2d 358 (2005) (WEAVER, J., concurring).

MARKMAN, J. For the following reasons, I deny the motion for my disqualification.

Respondent first argues that I am “enmeshed in other matters” concerning him. However, this is true only because respondent by his own actions, specifically by initiating a series of federal lawsuits against me and other Justices of this Court, has so “enmeshed” me. It cannot be that a judge can be required to disqualify himself or herself simply on the basis of such lawsuits.

Grace v Leitman, 474 Mich 1081 (2006); . To allow respondent‘s lawsuits to constitute a basis for my disqualification because I have thereby become “enmeshed” with him would simply be to incentivize such lawsuits on the part of any attorney or litigant desirous of excluding a disfavored judge from participation in his or her case.

Respondent next argues that my participation in this case would afford me the opportunity to “buttress a demand for money from him.” This apparently refers to my defense in one of respondent‘s lawsuits that the lawsuit is “frivolous” and, therefore, that sanctions are appropriate under federal court rules. Again, it cannot be that a judge can be required to disqualify himself or herself on the basis of his or her defense to a lawsuit. It is the right of any litigant, including a judicial defendant, to defend himself or herself by appropriate means. To allow my defense to respondent‘s lawsuits to constitute a basis for my disqualification would again simply be to incentivize such lawsuits on the part of any attorney or litigant desirous of excluding a disfavored judge from participation in his or her case.

Respondent next argues that I have been a “target of personal abuse” from him and cannot be fair toward him. Whatever “abuse” respondent may or may not have directed toward me, I have never once called into question the propriety of his conduct. I have never questioned his right to direct any public criticism toward me or to undertake any financial contributions against me in the course of my campaigns for judicial office. Once again, it cannot be that a judge can be required to disqualify himself or herself on the basis of “abuse” that he has allegedly received from an attorney or litigant. To allow such conduct to constitute a basis for my disqualification would again simply be to incentivize such conduct on the part of any attorney or litigant desirous of excluding a disfavored judge from participation in his or her case.

Respondent next argues that my nondisqualification would potentially allow me to “vent my spleen” against him because of his opposition to my reelection to this Court. However, as was observed in

Adair v Michigan, 474 Mich 1027 (2006) (statement by TAYLOR, C.J., and MARKMAN, J.), if campaign opposition constituted a basis for disqualification, there would rarely, if ever, be a full contingent of this Court hearing an appeal. Lawful campaign contributions, in support of and in opposition to a judge, have never before constituted a basis for disqualification. Respondent himself, for example, has made contributions in support of or in opposition to each of the Justices of this Court.

Finally, respondent argues that my wife has a pecuniary interest in the outcome of this case because he “might” run for Attorney General someday. For the reasons set forth by Chief Justice TAYLOR and myself in

Adair, my participation in cases concerning the Office of the Attorney General and other public and private offices in which my wife has worked, has always been in accord with the highest standards of judicial conduct. My wife, who is a civil service employee, has no financial stake in whether respondent prevails or not in this case, or in whether respondent someday chooses to run for Attorney General or any other public position.

After carefully considering the instant motion for disqualification, I am convinced that I can fairly and impartially consider the present appeal just as in the past I have fairly and impartially considered both appeals in which respondent was a party and appeals in which he represented other parties.

CAVANAGH and KELLY, JJ. We do not participate in the decisions regarding the motions to disqualify Justice CORRIGAN and Justice MARKMAN.

Proposed Amendment of Rules 2.112 and 7.206 of the Michigan Court Rules

Supreme Court of Michigan

Order Entered June 20, 2006

On order of the Court, this is to advise that the Court is considering amendments of Rules 2.112 and 7.206 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.

Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.

[The present language would be amended as indicated below:]

RULE 2.112. PLEADING SPECIAL MATTERS.

(A)-(G)[Unchanged.]

Notes

MCR 3.302(B), in relevant part, provides:

If another adequate remedy is available to the party seeking the order, a complaint for superintending control may not be filed.