By John O'Connor (News Lansing Bureau) LANSING- The abortion issue is ruffling the tranquility of the eight-man, one-woman race for two seats on the Michigan Supreme Court. Judicial candidates to the left and right of the political center have spoken out on Proposal B, which would permit legal abortions in the state and also on the recent ruling of a Wayne County circuit judge that the present state law prohibiting most abortions is unconstitutional. By speaking out, Zolton Ferency, a candidate of the Human Rights Party, and Oakland County Circuit Judge William J. Beer, candidate of the American Independent Party, have raised a question about their impartiality if either should be elected to the state's highest court and the court then have to decide an abortion case. Ferency, speaking at the Midwestern Conference of Zero Population Growth, said: "In an increasingly crowded and complex society, the right to be let alone has become more precious than ever before, and that means that free citizens in a free society ought to be able to control their own thoughts and their own bodies as long as they are not interfering with the right of others to do likewise . . . Laws like abortion laws and others are constantly interfering with our lives." Ferency said he has urged the passage of Proposal B, but distinguishes between that and speaking out specifically on the Wayne County court decisión holding the abortion law unconstitutional. Judge Beers has said: "To allow any woman with a doctor or non-doctor aiding and abetting in deliberately planning to kill by abortion a living child fetus is murder." And Beer declared he is opposed to passage of Proposal B "100 per cent." The 30th canon of the Code of Judicial Ethics adopted by the Michigan Supreme Court states in part: "A candidate for judicial position should not make or suffer "others to" make for him promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power; He should not announce in advance his conclusions of law on disputed issues to secure class support, and he should do nothing while a candidate to créate the impression that if chosen, he will administer his office with bias, partiality or improper discrimina tion." Ferency said nothing in that canon is applicable to his comments on the abortion proposal. He pointed out that because of previous political exposure- he is former state chairman of the Democratie party and a founder of the Human Rights party- he has been on record for some time on many controversial issues. Asked if he would, in light of his public statements, disqualify himself if elected from ruling on an abortion case Ferency saidhe "might," but it would depend on "how the issue got there." Judge Beers also denied his statement could be construed as violating the canon because "I merely stated I'll support the (present abortion) law of this state." Beers said he wouldn't disqualify himself, if elected to the Supreme Court, from ruling on any abortion case that might come up. The question of a judge's impartiality in deciding certain cases caused one of President Nixon's most recent U.S. Supreme Court appointees, William H. Rehnquist, to issue a lengthy statement last week explaining why he w a s n ' t about to disqualify himself from casting a vote on certain cases in which he had been involved in prior to donning the black robes of an associate justice. Rehnquist argued that every judge comes to the bench with views on issues and it is only the random circumstance of his prior position that may exposé some of his beliefs to view and this is not grounds for disqualification. However, on the other side of this scale, Justice William 0. Douglas has disqualified himself in the past from participating in cases involving subjects he has spoken out publically about. Several other candidates for the Michigan Supreme Court are avoiding comment on the abortion issue. 'Tve been asked," said Vincent J. Brennan, now a judge on the State Court of Appeals and a candidate of the Independent Judiciary party. "I don't feel it's an opinión I'd be able to give." Brennan cited the 30th judicial canon as a reason for bis keeping silent, and said a candidate who did speak out might have to disqualify himself later if a case involving the abortion issue came before him. "I've feit the canons of judicial ethics particularly precluded any comment . . ." said Probate Judge Mary Coleihan, a Republican candidate for the high court. She said she saw no difference 1 tween commenting on Proposal B and commenting on the Wayne County circuit abortion decisión. "Whoever is on the Supreme Court is almost eertain to receive that question," said Mrs. Coleman. However, on the question of a judge having to disqualify himself, she said it would depend on the part i c u 1 a r case the facts involved, and whether the judge had made some public pronouncement in line with the facts in that case. The public, she said, has to have "some degree of confidence" that it isn't receiving a preconceived decisión froml the Supreme Court. Charles L. Levin, also a Court of Appeals judge and a candidate of the Non-Partisan Judicial party, said a candidate shouldn't comment "on an issue likely to come before the court. "Nobody who sits on that court can have an opinión until the question is presented, briefed and argued over in conference," said Levin. The person who expresses I himself publicly on a "highly controversial question," Levin I said, probably owes it to the court not to sit on that case because it would tend to erode public confidence in the integrity of the court. W a y n e County Circuit Judge Horace W. Gilmore, a Democratie nominee for the Supreme Court, said comment on Proposal B might be improper also because there is a possibility the Supreme Court may yet have to consider other legal issues surrounding Proposal B. Gilmore also cited the judicial canons as a reason for not commenting on the abortion issues. James S. Thorburn, a Republican nominee and an Oakland County circuit judge, said it would be "highly improper" for a Supreme Court I candidate to comment on the I abortion issue and one who I did comment "could well be I asked to disqualify" himself I f r o m hearing an abortion I case. "That's exactly why I haven't been commenting on the abortion issue," said William A. Ortman, a Detroit attorney and nominee of the Conservative party. Ortman believes a candidate who commented would have to disqualify himself from an abortion case. "Justices have to be very careful on speaking out," said one candidate. "Their principal job is to decide cases- not deliver speeches." The tradition on the Michigan Supreme Court has been for a justice not to comment on his reasons for disqualifying himself from ruling on a certain case. A court observer estimated one of the seven justices will disqualify himself perhaps once or twice a year.
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