Judicial disqualifications


by Hon. Valerie K. Snyder   |   Michigan Bar Journal


Having grown up in Charlevoix, the beauty of northern Michigan has never lost its appeal for me. After law school, I returned home and was in private practice for 20 years before being appointed, and then elected, to serve as the probate court judge in Charlevoix and Emmet counties. It has been a blessing to have this career in the only place I have ever considered home.

Like most judges before taking the bench, I was very involved in my community, serving in many elected, appointed, and volunteer roles. That, coupled with the fact that Charlevoix has been my home practically since birth, means I know a lot of people. That in and of itself is not unique to northern Michigan judges. However, when you consider that the combined population of Charlevoix and Emmet counties is about half that in just the city of Lansing, I frequently preside over cases involving parties I have known over the years.

Living in a smaller community means you see people you know everywhere: at grocery stores, gas stations, restaurants, community events, and even at work. In one of my counties, I work in a building where one of my former teachers, my sons’ driver’s education instructor, a former law partner, high school classmates, former clients, a good friend’s brother, and my own sister also work. This is the nature of living in a small town.

It is not uncommon to have cases involving my former classmates or their children, people I’ve worked or served on boards with, my children’s friends or their parents, and other acquaintances I’ve made during a lifetime of living in the same community. It may come as a surprise, then, that I’ve had only a handful of cases where I had to disqualify myself because of those relationships.

Having an unbiased and impartial decision maker is one of the hallmarks of due process. As such, judges have an obligation to disqualify themselves when they are unable to be fair and impartial. When the judge is acquainted with a party or counsel outside of the courtroom, disqualification may need to be considered.


When a disqualification issue arises, judges are guided by the Michigan Code of Judicial Conduct, the Michigan Court Rules, the Michigan Rules of Professional Conduct, and case law. Additionally, the Judicial Ethics Committee of the State Bar of Michigan provides advisory opinions. While these opinions are not binding, they may be helpful when considering a specific disqualification issue.

The Michigan Code of Judicial Conduct consists of eight canons. Disqualifications are addressed in Code of Judicial Conduct, Canon 3(C), which refers to the court rule governing disqualifications. Canon 3(C) states that a judge should raise the issue of disqualification whenever that judge has cause to believe that grounds for disqualification may exist under MCR 2.003(C), and also references MCR 2.003(E) regarding disqualification waivers.

MCR 2.003 spells out the answers to most questions about how judicial disqualification works — who may raise the issue and how, the grounds upon which disqualification is warranted or not warranted, and waiving disqualification.


MCR 2.003(C)(1) is a non-exhaustive list of reasons that warrant disqualification. Some are straightforward, such as whether a judge was a member of a law firm representing an involved party within the preceding two years.1 Others, however, are open for interpretation, such as whether the judge is biased or prejudiced for or against an attorney or a party.2

When a judge’s prior relationship or community acquaintance with a party or counsel is the basis for a request to disqualify, a party alleges “bias or prejudice” by the judge, which requires a showing of “actual bias.”3 Because a “trial judge is presumed to be impartial,” it puts a heavy burden to overcome that presumption on the party asserting partiality.4 More commonly, such motions rely on an alleged appearance of impropriety that would cause the judge to violate Canon 2 of the Code of Judicial Conduct if not disqualified. However, the Michigan Court of Appeals has held that a judge’s casual or distant acquaintance with with an attorney or party to an action, by itself, does not warrant disqualification.5 Coming to a similar conclusion, the Judicial Ethics Committee issued its opinion that a “‘personal acquaintance’ without more is insufficient grounds for a judge to automatically recuse.”6


The procedure for raising disqualification is found in MCR 2.003(D). In trial courts, a judge may raise the issue, or a party may raise the issue by filing a motion within 14 days of disclosure of a judge’s assignment to the case or within 14 days of the discovery of the grounds for disqualification. If a potentially disqualifying issue is discovered within 14 days of trial, the motion must be filed “forthwith.”

I always disclose prior relationships or acquaintances on the record. My disclosure includes the nature of the relationship and what I know or, more often, what I don’t know, about the case. The parties then have 14 days to file a motion for disqualification.

The motion will be heard by the judge whose disqualification is at issue. If the judge denies the motion, a party can upon request refer the matter to the chief judge, who decides the motion de novo. In cases where there is only one judge of the court or the challenged judge is the chief judge, the state court administrator will assign a judge for a de novo hearing, again, upon request of a party.

If the motion to disqualify is granted, the case will be assigned to another judge of the same court, if one is available, or to a judge selected by the state court administrator. Court staff handles the communication and paperwork requesting assignment of another judge.

A party must comply with the time frames and procedural requirements of the court rule to preserve any claim of error for appeal.7


In many cases where disqualification of a judge is potentially warranted, the parties choose instead to waive the disqualification issue and have the case heard by the assigned judge. This is permitted by MCR 2.003(E) provided that the judge is willing to serve and all parties agree to the waiver either in writing or on the record.

More often than not, when I disclose a prior acquaintance or social relationship, the parties agree on the record to waive the disqualification and proceed with the case as scheduled. The parties’ waiver does not bind the judge; the judge must determine if he or she is willing to hear the case considering not only the facts and circumstances of the case, but also the obligations under the judicial canons.


From the judicial perspective, it may seem that the safer course of action when a disqualification question is raised is to simply grant the request and allow another judge to hear the case. However, judges also have a duty to sit — “an obligation to remain on any case absent good grounds for recusal.”8 When grounds warranting disqualification have not been established, “disqualification is not optional; rather, it is prohibited.”9


Although judges serving in more rural areas may encounter acquaintances from their communities in their courtrooms more frequently than our counterparts in more metropolitan areas, many of the potential disqualification issues are resolved by judicial disclosure and a waiver by the parties. Certain types of cases, such as guardianships for developmentally disabled individuals, can be emotional and difficult for the families involved. More than once, parties have not only waived disqualification, but expressed appreciation to see a familiar face handling their hearing.

Perhaps this is another benefit of serving in a small town.



1. MCR 2.003(C)(1)(e).

2. MCR 2.003(C)(1)(a).

3. Cain v Mich Dept of Corrections, 451 Mich 470, 478-479; 548 NW2d 210 (1996).

4. In re MKK, 286 Mich App 546, 566; 781 NW2d 132 (2009).

5. See, for example, Reno v Glen R Gale, Corner of State & William Partnership, 165 Mich App 86; 418 NW2d 434 (1987) (acquaintance with attorney who is a party does not warrant disqualification).

6. Opinion JI-44, issued November 1, 1991.

7. Kloian v Schwartz, 272 Mich App 232, 244; 725 NW2d 671 (2006).

8. Adair v State Dept of Education, 474 Mich 1027, 1040-41; 709 NW2d 567 (2006).

9. Id.