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The Michigan bench and bar is watching with apprehension as the state’s Supreme Court appears headed for a reckoning over the issue of when justices should disqualify themselves from hearing cases. The reckoning is all the more dramatic for emerging from within the high court bench itself, as revealed in a series of judicial opinions, orders and dissents related to an attorney discipline case. In these court papers, a four-justice Republican majority-accused by one justice of partiality and bias-openly trades shots with justices it disagrees with. In an opinion holding that a plaintiffs’ lawyer violated state rules of professional conduct, Chief Justice Clifford W. Taylor noted that the three dissenting justices who would allow the lawyer’s crude public criticisms of the majority would “usher” into the state “a Hobbesian legal culture, the repulsiveness of which is only dimly limned by the offensive conduct that we see in this case.” Taylor declined a request for an interview through a spokeswoman. The latest salvos in the battle are a series of opinions and dissents related to pointedly crass comments about members of the conservative Republican majority made on a radio program by plaintiffs’ lawyer Geoffrey N. Feiger of Feiger, Feiger Kenney & Johnson of Southfield, Mich. Feiger has been portrayed as a poster child of trial lawyers who abuse the legal system in political-campaign advertisements run by Taylor and justices Maura D. Corrigan, Stephen J. Markman and Robert P. Young Jr. Feiger has repeatedly asked these and other justices to recuse themselves from hearing his cases on the basis of such remarks. Grievance Administrator v. Feiger, No. 127547 (Mich.). In a related action, the 6th U.S. Circuit Court of Appeals ruled late last month that a lawsuit Feiger filed challenging the constitutionality of the Michigan Supreme Court’s recusal rules may proceed at the federal district court in Detroit that had dismissed the case. Feiger v. Ferry, No. 05-1295 (6th Cir.). [See Court Decisions on Page 20.] The majority has stood firm in resisting calls that they recuse themselves from hearing Feiger’s cases, and even has sought to sanction him for his alleged antics. The court has included a related issue on the agenda of a public meeting that it has scheduled for Jan. 17. At that meeting, the court may consider whether to sanction Justice Elizabeth A. Weaver for publishing her dissent in the Fieger case, thereby allegedly violating Administrative Order 2006-8, which the majority passed to ensure that the court’s discussions, memos, e-mails and correspondence relating to Fieger and other cases remain confidential. Weaver, also a Republican, whom the majority has tried to silence and singled out for opprobrium both in its opinions and from the bench in front of litigants, says that her criticisms stem, among other things, from the need for the court to establish clear standards for when recusal is appropriate. But the majority blames what it calls her ” ‘independent’ views,” and her personal resentment against them for not renewing her tenure as chief judge six years ago. Michigan lawyers say that the general public is just now becoming aware of concerns that both plaintiffs’ and defense attorneys have had for a number of years over a majority whose opinions clearly favor big business and insurance companies over tort claimants. Jane M. Beckering of Buchanan & Beckering, a plaintiffs’ practice in Grand Rapids, said that “it appears to all lawyers on both plaintiffs’ and defense sides of the bar that there is a political agenda and that big business and insurance companies are being favored.” Beckering, who ran unsuccessfully for a seat on the Supreme Court last fall, said that she faults the majority for a judicial activism from the right that emphasizes form over substance, selectively applies “textualism” when it favors insurance companies and big business, and overturns long-held precedent at an alarming rate. “There’s a concern internally about impartiality and civility, and an investigation should be brought to prove that out,” she said. The complaint filed in Fieger’s federal declaratory judgment action against the court. The U.S. Sixth Circuit Court of Appeals Dec. 2006 decision reinstating Fieger’s action.

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