Court of Claims in the Court of Appeals

In Okrie v State of Michigan, et al, __ Mich App __ (#319550, 8/19/2014) the Court of Appeals addressed the recent legislation establishing the Court of Claims in the Court of Appeals and collaterally the process for disqualification of Court of Claims/Court of Appeals judges.  In Okrie, the Court recognized that the effect of PA 164 requires the Court of Appeals to simultaneously house an appellate court and a trial court of limited jurisdiction (Court of Claims). Upholding the constitutionality of PA 164, the Court of Appeals nevertheless acknowledged that a fair concern may exists with the appearance of how this direct appellate review will function. That an appeal as of right for Court of Claims cases is in essence a horizontal or lateral appeal, and that a peaceful governance based on principles such as the rule of law depends on the public’s trust that the judicial system is fairly and impartially deciding cases. PA 164, with its apparently unprecedented system of housing the trial court for state claims in the only appellate court of right, could contribute to distrust in the appellate process when it concerns Court of Claims matters. See Hunt, Legal Ethics—Attorney Conflicts of Interest—The Effect of Screening Procedures and the Appearance of Impropriety Standard on the Vicarious Disqualification of a Law Firm, 70 Tenn L Rev 251, 278 (2002).

 

Courts have long been critical of “horizontal” or “lateral” appeals. One cannot lose sight of the fact that appeals only lie from one court to another. There must be a competent judicial tribunal to pass upon a case before an appeal can be taken to a higher court. In other words, the appellate process must proceed vertically, not sideways.  However, PA 164 requires judges from the Court of Appeals to first hear Court of Claims cases at the trial court level, and then provides for direct review of those decisions, as of right, by their colleagues on the Court of Appeals. At first glance, such a procedure could be viewed as giving the appearance that there is no meaningful appellate review, and that the same court is merely rendering an appellate opinion on a matter that it already decided. However, nothing in PA 164 requires a Court of Claims judge to review his or her decisions in appeals filed in this Court, and there exist internal and external procedures to address any potential conflicts.

 

If there is a possible conflict or reason for disqualification, the Court of Appeals screens cases to identify potential conflicts, flags the cases, and then the judge in question decides whether recusal is necessary. See Internal Operating Procedure (IOP) 7.213(D)-(3) (providing, in pertinent part, that “[the Court screens cases to identify potential conflicts based on even minimal involvement of a current Court of Appeals judge at the trial court level . . . . If, upon assignment of a case, a judge on the panel discovers a prior connection to the case, the judge will decide whether recusal is necessary.”). Further, if a Court of Claims judge does not recuse himself or herself when assigned a Court of Claims matter on appeal, the parties are free to move for disqualification. See IOP 7.213(D)-(3) (providing that “[a] party seeking to disqualify a judge of the Court may file a motion to disqualify.”).   Canon 2 of the Michigan Code of Judicial Conduct provides that judges “must avoid all impropriety and appearance of impropriety.” Under Canon 2, whether an appearance of impropriety exists requires consideration of whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, and impartiality.