Should you -- and can you -- ask for a new judge?
MCR 2.003 is very specific with the fact patterns that will justify recusal, as well as those that do not. There must be something more than a cursory involvement with prior proceedings involving some of the parties or familiarity with an attorney who practices often in the courtroom. Specifically:
MCR 2.003 Disqualification of Judge
…
(C) Grounds.
(1) Disqualification of a judge is warranted for reasons that include, but are not limited to, the following:
(a) The judge is biased or prejudiced for or against a party or attorney.
(b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey, 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.
(c) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.
(d) The judge has been consulted or employed as an attorney in the matter in controversy.
(e) The judge was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years.
(f) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has more than a de minimis economic interest in the subject matter in controversy that could be substantially impacted by the proceeding.
(g) The judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; or
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.
MCR 2.003(C). There is a 14 day window of opportunity to motion for recusal upon discovering one or more of these grounds.
"A judge is disqualified when he cannot hear a case impartially .…” Cain v Dep't of Corrections, 451 Mich 470, 494; 548 NW2d 210 (1996). A judge is presumed to be impartial, and the party asserting partiality has the heavy burden of overcoming that presumption. Id. at 497.
There is a strong presumption against recusal. Theparty moving to have a judge disqualified on basis of bias, must overcome heavy presumption of judicial impartiality. Schellenberg v Rochester Lodge No 2225 of Benevolent & Protective Order of Elks, 228 Mich App 20, 577 NW2d 163 (1998). This is a “heavy burden,” In re Hamlet(After Remand), 225 Mich App 505, 571 NW2d 750 (1997), and requires proof of something more than cursory allegations, an attorney’s mere belief or fear of bias, and a tenuous nexus between the judge and the parties, their attorneys, pending appeals, or the subject matter of the litigation, Olson v Olson, 256 Mich App 619, 671 NW2d 64 (2003).
For example, in Coble v Green, 271 Mich App 382, 722 NW2d 898 (2006), the judge did not recuse himself, and the Court of Appeals confirmed recusal was unnecessary, even though (1) the moving party practiced often before the Ingham County Circuit Court bench, (2) all of the other judges of the bench recused themselves and (3) the moving party had a pending judicial tenure complaint against the judge. As the Court of Appeals aptly noted, knowing local counsel is not a basis for recusal, nor having a pending adverse complaint from a party, nor being the only judge of the bench who declines to recuse sua sponte. Id.; see also, Ireland v Smith, 214 Mich App 235, 249; 542 NW2d 344 (1995), mod on other grounds 451 Mich 457 (1996) (JTC complaint not a basis for recusal); and Reno v Gale, 165 Mich App 86, 90; 418 NW2d 434 (1987) (knowing local counsel not a basis for recusal).
As another example, in FMB–First Nat’l Bank v Bailey, 232 Mich App 711, 591 NW2d 676 (1998), the judge declined recusal, and the Court of Appeals confirmed recusal was unnecessary, even though the trial judge was familiar with the parties and their proceeding. In that case, the judge served as arbitrator – having more than a procedural involvement, as here, with the case – and the Court of Appeals upheld the presumption that the judge would remain impartial. In order to upset this presumption, the moving party must show not that the judge had prior involvement but that “the judge’s involvement causes actual personal bias and prejudice” and that the involvement is” both personal and extrajudicial.” Id. In other words, simply presiding over prior proceedings is not a basis for recusal. Id. See also, In re Schmeltzer, 175 Mich App 666, 438 NW2d 866 (1989) (mere fact of presiding over prior proceedings does not justify recusal, even if judge makes initial negative assessment of party).
To hold otherwise would allow a party to play “judge shopping” and delay resolution of the case merely because the judge ruled adversely in a prior case, knows an attorney or party or has been appealed. These, too, are not bases for recusal. Coble v Green, 271 Mich App 382, 722 NW2d 898 (2006).
All this being said, if a recusal is not your best option (and usually it is not), you may consider retaining an new attorney. There are all kinds of reasons attorneys and judges do not mix -- fear, bad track record, ethics, personality conflict -- and, most of all and often only, you and your attorney do not mix. You are in it for the long haul, so find an attorney you feel good about, inside and outside the courtroom.