Opinion
Docket No. 144191.
01-23-2012
Frank J. LAWRENCE, Jr., Plaintiff, v. BOARD OF LAW EXAMINERS, Defendant.
STATEMENT REGARDING DECISION ON MOTION FOR DISQUALIFICATION
MARKMAN, J.
Plaintiff has moved for my disqualification on the basis of remarks that I made in introducing opposing counsel, John Fedynsky, as the keynote speaker at a 2010 meeting of the Michigan Supreme Court Historical Society in which I allegedly described Mr. Fedynsky as "the finest and most enterprising young man that I know," and because I authored a foreword to a book written by Mr. Fedynsky on Michigan's county courthouses. Although my prepared remarks, from which I do not recall departing, indicate that I introduced Mr. Fedynsky as "one of the finest and most enterprising young men that I know," I will stipulate that I have very high regard for Mr. Fedynsky.
MCR 2.003 provides that disqualification is warranted where the judge is "biased or prejudiced for or against" an attorney. MCR 2.003(C)(1)(a). This requires a showing of actual bias or prejudice, which has been defined by this Court as " ‘an attitude or state of mind that belies an aversion or hostility of a kind or degree that a fair-minded person could not entirely set aside when judging certain persons or causes.’ " Cain v. Dep't of Corrections, 451 Mich. 470, 495 n. 29, 548 N.W.2d 210 (1996), quoting United States v. Conforte, 624 F.2d 869, 881 (C.A.9, 1980).
No grounds for my disqualification are present in this regard because I am not actually biased for Mr. Fedynsky. As I suspect is true of most judges, there are many attorneys who appear before this Court whom I know and respect, and many attorneys whom I do not know at all. But this is of little consequence in the judicial process for it is not the lawyer I am judging, but the law. That a judge has some personal perspective concerning a lawyer does not signify that he or she cannot set aside this perspective and impartially assess the merits of the case being argued. I do not have an "attitude or state of mind" regarding Mr. Fedynsky "of a kind or degree that a fair-minded person could not entirely set aside."
Nor is the "appearance of impropriety" implicated in this case. MCR 2.003(C)(1)(b)(ii). I do not believe that a reasonable person would perceive my laudatory introductory remarks of Mr. Fedynsky as impairing my ability to carry out my judicial responsibilities with impartiality. Nor do I believe that a reasonable person would perceive my writing a foreword to Mr. Fedynsky's book—a book in which I have no financial stake—as impairing my ability to carry out these responsibilities with impartiality. Accordingly, plaintiff's motion for my disqualification is denied.