F.Procedure for Disqualification
“To avoid delaying trial and inconveniencing the witnesses, all motions for disqualification must be filed within 14 days of the discovery of the grounds for disqualification. If discovery is made within 14 days of the trial date, the motion must be made forthwith.” MCR 2.003(D)(1)(a).
“All motions for disqualification must be filed within 14 days of disclosure of the judge’s assignment to the case or within 14 days of the discovery of the grounds for disqualification. If a party discovers the grounds for disqualification within 14 days of a scheduled oral argument or argument on the application for leave to appeal, the motion must be made forthwith.” MCR 2.003(D)(1)(b).
“If an appellant is aware of grounds for disqualification of a justice, the appellant must file a motion to disqualify with the application for leave to appeal. All other motions must be filed within 28 days after the filing of the application for leave to appeal or within 28 days of the discovery of the grounds for disqualification. If a party discovers the grounds for disqualification within 28 days of a scheduled oral argument on the application for leave to appeal, the motion must be made forthwith.” MCR 2.003(D)(1)(c).
“All requests for review by the entire Court pursuant to [MCR 2.003(D)(3)(b)] must be made within 14 days of the entry of the decision by the individual justice.” MCR 2.003(D)(1)(c).
“Untimely motions in the trial court, the Court of Appeals, and the Supreme Court may be granted for good cause shown. If a motion is not timely filed in the trial court, the Court of Appeals, or the Supreme Court, untimeliness is a factor in deciding whether the motion should be granted.” MCR 2.003(D)(1)(d). See Kendzierski v Macomb Co, 503 Mich 938, 939 n 4 (2019) (noting that MCR 2.003(D)(1)(d) is “confusing[],” and that “[i]t is unclear . . . how much discretion a judge has to grant an untimely motion to disqualify”).
2.All Grounds to Be Included and Affidavit
“In any motion under [MCR 2.003], the moving party must include all grounds for disqualification that are known at the time the motion is filed. An affidavit must accompany the motion.” MCR 2.003(D)(2).
a.Court Other Than Supreme Court
“For courts other than the Supreme Court, the challenged judge shall decide the motion. If the challenged judge denies the motion,
(i) in a court having two or more judges, on the request of a party, the challenged judge shall refer the motion to the chief judge, who shall decide the motion de novo;
(ii) in a single-judge court, or if the challenged judge is the chief judge, on the request of a party, the challenged judge shall refer the motion to the state court administrator for assignment to another judge, who shall decide the motion de novo.” MCR 2.003(D)(3)(a). See People v Bunkley, 501 Mich 1085 (2018) (“[b]ecause defendant appears to have made a request under MCR 2.003(D)(3)(a)(i), the chief judge was required to decide the motion de novo”).
Standard of Review on Appeal. “When [the] Court [of Appeals] reviews a decision on a motion to disqualify a [trial court] judge, the trial court’s findings of fact are reviewed for an abuse of discretion, while the application of the facts to the relevant law is reviewed de novo.” People v Roscoe, 303 Mich App 633, 647 (2014) (quotation marks and citation omitted).
“In the Supreme Court, if a justice’s participation in a case is challenged by a written motion or if the issue of participation is raised by the justice himself or herself, the challenged justice shall decide the issue and publish his or her reasons about whether to participate.” MCR 2.003(D)(3)(b).
“If the challenged justice denies the motion for disqualification, a party may move for the motion to be decided by the entire Court. The entire Court shall then decide the motion for disqualification de novo. The Court’s decision shall include the reasons for its grant or denial of the motion for disqualification. The Court shall issue a written order containing a statement of reasons for its grant or denial of the motion for disqualification. Any concurring or dissenting statements shall be in writing.” MCR 2.003(D)(3)(b).
“[A]n unconstitutional failure to recuse [in appellate proceedings involving multimember courts] constitutes structural error even if the judge in question did not cast a deciding vote”; “a due process violation arising from the participation of an interested judge is a defect not amenable to harmless-error review, regardless of whether the judge’s vote was dispositive.” Williams v Pennsylvania, 579 US 1, 14 (2016) (quotation marks and citation omitted). “An inability to guarantee complete relief for a constitutional violation, however, does not justify withholding a remedy altogether”; rather, in criminal proceedings, a defendant “must be granted an opportunity to present his claims to a court unburdened by any possible temptation not to hold the balance nice, clear and true between the State and the accused.” Id. at 16 (quotation marks and citation omitted).
4.If Disqualification Motion Is Granted
a.Court Other Than Supreme Court
“For courts other than the Supreme Court, when a judge is disqualified, the action must be assigned to another judge of the same court, or, if one is not available, the state court administrator shall assign another judge.” MCR 2.003(D)(4)(a).
“In the Supreme Court, when a justice is disqualified, the underlying action will be decided by the remaining justices of the Court.” MCR 2.003(D)(4)(b).