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Home > Journals > Michigan Law Review > MLR > Volume 36 > Issue 6 (1938)

 

Abstract

The problems of the disqualification of judges because of prejudice and of the appointment of substitutes for judges so disqualified were considered in the recent case of State ex rel. Thompson v. Day. One of the defendants in a labor injunction suit had filed with the governor an affidavit setting forth facts showing that the sole judge of the district in which the dispute had arisen had anti-labor tendencies to such extent that the petitioner could not obtain a fair trial and requested that the regular judge be disqualified from hearing the injunction proceedings and a substitute appointed. The governor granted the petition and designated the judge of another district to hear the case. The plaintiffs in the injunction proceedings then sued out a writ of prohibition to prevent the substitute from sitting in the case, claiming that the exercise of such powers of disqualification and appointment by the governor was illegal in that it violated the separation of powers provision of the constitution. A majority of the court held that the action of the governor was unconstitutional in two respects, namely that the disqualification of a judge on account of prejudice could not be determined by the chief executive and that the substitute for a disqualified judge could not be appointed by him. The minority opinion pointed out that the state constitution authorized the legislature to provide by law that the judge of one district may discharge the duties of the judge of any other district when convenience or public interest so requires and that a delegation of such power of appointment to the governor was not unconstitutional. The two constitutional issues presented by this case will be considered in reverse order.

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