Summary
filing of complaint against judge with judicial commission does not require permanent order of disqualification where judge was recused from cases pending resolution of the complaint
Summary of this case from Kane v. Jefferson CntyOpinion
Docket No. 96554.
Decided February 1, 1988.
Goodman, Eden, Millender Bedrosian (by Ernest Goodman), and Paul H. Stevenson and Patricia M. Strunck, of Counsel, for plaintiff.
Clary, Nantz, Wood, Hoffius, Rankin Cooper (by Douglas W. Van Essen and Robert W. White), for defendant.
Amicus Curiae:
George B. Mullison, Prosecuting Attorney, Patrick O. Duggan, Chief Assistant Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney.
In this case we are asked to exercise our extraordinary power to issue an order of superintending control to permanently disqualify defendant, Bay Circuit Judge Eugene C. Penzien, from presiding in any case in which plaintiff is counsel of record. We decline to issue such an order, and we hold that, in cases where issues of fact necessary to the exercise of such power are disputed, the remedy provided by MCR 2.003, and appeal thereafter as provided by Chapter 7 of the Michigan Court Rules, is adequate and must be used.
I
The authority of this Court to issue an order of superintending control derives from MCR Subchapter 3.300, and from MCR 7.203(C)(1) and 7.206. Justice WILLIAMS described this authority as it was granted by predecessor rules in Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 680-681; 194 N.W.2d 693 (1972):
The Supreme Court has by GCR 1963, 711 provided that the Court of Appeals has the power to issue superintending control orders which are in the nature of certiorari, mandamus and prohibition.
This superintending control has nothing to do with the general supervisory superintending control over all courts given to the Supreme Court by art 6, § 4 of the 1963 Constitution or the supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the Supreme Court, given the circuit courts by art 6, § 13 of the 1963 Constitution.
No general control of inferior courts exists in the Court of Appeals.
More recently, the Supreme Court described this authority as follows in In re People v Burton, 429 Mich. 133, 139; 413 N.W.2d 413 (1987):
In exercising the power of superintending control over a lower court, a reviewing court is invoking an extraordinary power. Under its constitutional power, this Court adopted MCR 7.203(C) which provides the jurisdiction of the Court of Appeals for extraordinary writs, original actions, and enforcement actions. MCR 7.203(C)(1) provides that the Court may entertain an action for "superintending control over a lower court or a tribunal immediately below it arising out of an action or proceeding which, when concluded, would result in an order appealable to the Court of Appeals." MCR 3.302(C) provides that superintending control is to be used in place of the former writs of certiorari, mandamus, and prohibition. An order of superintending control, comparable to a writ of certiorari, traditionally has been used only to determine "if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law." Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672; 194 N.W.2d 693 (1972), quoting In re Fredericks, 285 Mich. 262; 280 N.W. 464 (1938). The review in such a case is limited only to questions of law.
The scope of review was further described by Justice WILLIAMS in Genesee Prosecutor, supra at 681, as follows:
The writ of certiorari is for review of errors of law and our inquiry is limited to determining "if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law." In re Fredericks, 285 Mich. 262, 267 [ 280 N.W. 464] (1938). In [ People v] Flint Municipal Judge [ 383 Mich. 429; 175 N.W.2d 750 (1970)], we noted that mandamus would lie to require the magistrate to perform a clear legal duty. Here it is contended that the judge acted without jurisdiction and therefore has a clear legal duty to vacate the guilty plea and reinstate the criminal proceedings as filed in the information. The writ of prohibition is a common-law remedy designed to prevent excesses of jurisdiction. It is a proper remedy where the court exceeds the bounds of its jurisdiction or acts in a matter not within its jurisdiction. Hudson v Judge of Superior Court, 42 Mich. 239, 248 [3 N.W. 850] (1879).
See also Erlandson v Genesee Co Employees' Retirement Comm, 337 Mich. 195, 201; 59 N.W.2d 389 (1953), where a unanimous Court held as follows:
Appeals in the nature of certiorari are limited in scope. Questions of fact may not be reviewed. Brown v Blanchard, 39 Mich. 790 [1878]. Disputed facts cannot be determined. Hyde v Nelson, 11 Mich. 353 [1863]. Nor can the weight of evidence be reviewed. Linn v Roberts, 15 Mich. 443 [1867]. Only errors of law may be considered.
In Powers v Secretary of State, 309 Mich. 530, 533; 16 N.W.2d 62 (1944), the Court held:
[M]andamus is not a writ of right but of grace and discretion, and will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts.
Further limits on the use of this power are suggested by MCR 3.302(B) and (D)(2), which provide:
(B) If another adequate remedy is available to the party seeking the order, a complaint for superintending control may not be filed. See subrule (D)(2), and MCR 7.101(A)(2), and 7.304(A).
(D)(2) When an appeal in the Supreme Court, the Court of Appeals, the circuit court, or the recorder's court is available, that method of review must be used. If superintending control is sought and an appeal is available, the complaint for superintending control must be dismissed.
It has been held that the "adequacy of the appeal remedy is not a jurisdictional test but merely a procedural requirement to be met before relief can be granted." In re Hague, 412 Mich. 532, 546-547; 315 N.W.2d 524 (1982); Cahill v Fifteenth District Judge, 393 Mich. 137; 224 N.W.2d 24 (1974). Both the Hague and the Cahill cases were concerned with the exercise of a circuit court's constitutional supervisory power over the general practices of an inferior court or judge. In both cases the Supreme Court found the appeal of dozens upon dozens of such cases to be neither an adequate nor realistic remedy. 412 Mich. 547, and 393 Mich. 142-143.
The facts in this case are very different from those in Hague and Cahill, and we do not find them very helpful. As Justice ARCHER noted in Burton, supra, even where an appeal is unavailable an order of superintending control is not always available. "Whether an order of superintending control should issue depends upon the circumstances in the specific case." Burton, supra at 142.
II
The procedure for disqualification of a trial judge because of bias or prejudice against a party or his attorney, which was formerly provided by statute, is now provided by court rule. MCR 2.003. Generally, that procedure is exclusive and must be followed. Consumers Power Co v Iosco Circuit Judge, 210 Mich. 572; 178 N.W. 98 (1920); Hayes-Albion Corp v Kuberski, 108 Mich. App. 642, 657-658; 311 N.W.2d 122 (1981).
MCR 2.003 provides that a party or attorney seeking disqualification must file a written motion supported by an affidavit of facts and including all known grounds for disqualification. The judge complained of then holds a hearing and decides the motion. If the motion is denied, then the party or attorney may refer the motion to the chief judge who must decide the motion de novo on the record.
Review of an order granting or denying recusal of a trial judge for bias or prejudice is for abuse of discretion and the record must show actual bias or prejudice. The reviewing court must be provided with transcripts of the hearing or hearings and the affidavits filed by the parties. MacDonald v Ford Motor Co, 117 Mich. App. 538, 542; 324 N.W.2d 489 (1982).
We have been able to find only one case in Michigan which grants relief comparable to that requested by plaintiff in this case. In Auto Workers Flint Federal Credit Union v Kogler, 32 Mich. App. 257, 258-259; 188 N.W.2d 184 (1971), this Court gave the following reasons for permanent disqualification of Judge Donald Freeman from any cases involving the plaintiffs' law firm:
The brief submitted by the law firm states that subsequent to the judge's election as a circuit judge, the members of that law firm have moved to disqualify him in every case in which they were counsel of record. Since that time, one hundred such motions have been filed and most have been granted by other judges of the Genesee County Circuit Court.
* * *
This Court is convinced, however, that plaintiffs' affidavits sufficiently establish conduct on the part of the judge to support a motion for disqualification. In addition, there is now an outstanding grievance before the State Bar against him, the grievance having been filed by one of the members of the law firm. It is our opinion that the conduct in the past, along with the grievance which has been filed, is sufficient to support a motion for disqualification.
* * *
Since it is our opinion that the acts complained of demonstrate a prejudice and hostility toward members of the law firm, he should be disqualified from hearing any cases in which the firm is counsel. [Emphasis added.]
It should be noted that Kogler came to this Court by application for leave to appeal, and that the remedy was undoubtedly adequate.
By way of contrast, in this case it appears that plaintiff appeared as counsel of record in approximately twenty-five cases before Judge Penzien between 1982, the year he was admitted to practice as an attorney, and 1986, when this complaint was filed. In almost every case, Mr. Czuprynski filed one or more motions to disqualify Judge Penzien. In several cases, such motions were referred to Chief Judge Caprathe, and in a few cases Mr. Czuprynski moved to disqualify Judge Caprathe. We are informed that every single motion to disqualify was denied. Defendant Judge Penzien vigorously disputes the allegations of bias and prejudice.
We conclude that the complaint for superintending control should not be granted on such disputed facts. In the circumstances of this case, it appears to us that parties or attorneys who seek recusal of a trial judge for bias or prejudice should be limited to the procedures set out in MCR 2.003 and that the remedy of appeal is adequate and must be used.
III
Plaintiff argues that he has filed a grievance against Judge Penzien in the Judicial Tenure Commission and, therefore, Judge Penzien should be permanently disqualified in order to preserve the appearance of objectivity, citing Kogler, supra, and Clemens v Bruce, 122 Mich. App. 35; 329 N.W.2d 522 (1982).
Although proceedings before the JTC are confidential prior to the issuance of a complaint by the commission, MCR 9.207, 9.208, 9.222, and no such complaint has been issued as to Judge Penzien, when plaintiff revealed to Judge Penzien and Chief Judge Caprathe that a grievance was pending, Chief Judge Caprathe, on March 18, 1987, entered an order removing Judge Penzien from all cases in which Mr. Czuprynski appears as counsel of record, pending the investigation and final order of the Judicial Tenure Commission.
The mere filing of a grievance with the commission has no tendency to show merit in the grievance, or to show actual bias or prejudice on the part of the judge against the grievant. We believe the order issued on March 18, 1987, which goes well beyond the relief granted in Clemens, supra, is an appropriate and sufficient remedy for the present. The pendency of the grievance before the JTC, therefore, does not require an extraordinary order from this Court.
In fact, due to the confidential nature of proceedings before the JTC, it may well be that the grievance has already been resolved. In any event, we believe that the procedure employed is adequate and we need not take further action ourselves.
The complaint for superintending control is denied. Defendant may tax costs.