Judicial disqualification is governed by MCR 2.003. For detailed information about judicial disqualification generally, see the Michigan Judicial Institute’s Judicial Disqualification Benchbook. In the context of contempt proceedings, there are additional rules regarding whether a particular judge should preside over a particular proceeding.
The judge who witnesses the contumacious conduct in direct contempt cases should preside over the summary proceedings. See MCL 600.1711(1); People v Ahumada, 222 Mich App 612, 617-618 (1997) (trial court did not abuse its discretion by holding defendant in contempt).
However, “[w]hen a court defers consideration of [direct] contempt until the conclusion of the trial, another judge must consider the charges.” In re Contempt of Henry, 282 Mich App at 676, citing In re Contempt of Scharg, 207 Mich App 438, 440 (1994). See Section 2.4(F) for additional discussion of deferred consideration of direct contempt.
Additionally, a hearing before a different judge may be necessary where the direct contempt consists of personal attacks against the judge presiding over the case. Mayberry v Pennsylvania, 400 US 455, 465-466 (1971) (noting that not every attack on a judge will require a different judge to proceed over a contempt case). In Mayberry, the trial judge was subjected to several personal insults by the defendant, who represented himself in a criminal trial. Id. at 455-462, 466. The United States Supreme Court concluded that a judge who is personally attacked in such a manner “necessarily becomes embroiled in a running, bitter controversy.” Id. at 465. Accordingly, the Due Process Clause of the Fourteenth Amendment requires that the criminal contempt charges be heard by a different judge. Id. at 466.
B.Indirect Contempt Proceedings
“The judge who presided over the proceedings in the context of which the indirect contumacious conduct occurred should preside over the contempt proceedings.” In re Contempt of Henry, 282 Mich App 656, 675 (2009). See also Cross Co v UAW Local No 155 (AFL-CIO), 377 Mich 202, 212 (1966) (finding no error where the judge who presided over the proceedings in which the indirect conduct occurred also presided over the contempt proceedings).
In Cross Co, 377 Mich at 212, the Court noted that in some cases transfer to another judge might be appropriate, but that the decision to transfer “is one for the sound discretion of the judge handling the original proceeding.” The Court noted that several questions must be weighed and considered when determining whether transfer to a different judge is appropriate, including:
•“Can the charge of contempt be readily separated from that proceeding?” Id.
•“To what extent is there danger the judge may find himself [or herself] acting as an inquisitor rather than as an impartial judge?” Id.
•“Will the contempt proceeding be unduly delayed by transfer?” Id.
•“Is another judge readily available?” Id.
C.Cases Involving Publication of Comments Concerning Court or Judge
“In proceedings for contempt arising out of the publication of any news, information, or comment concerning a court of record, except the supreme court, or any judge of that court the defendant has the right to have the proceedings heard by the judge of another court of record.” MCL 600.1731.1
1 See Section 5.17 for further discussion of criticism of a court or judge as contempt.