Opinion
362987
09-15-2022
In re Robert T. Davis
LC No. 22-008866-AW
Anica Letica Noah P. Hood Judges
ORDER
Christopher M. Murray Presiding Judge
The motion for immediate consideration is GRANTED.
The complaint for superintending control is DISMISSED. This matter arose from the motion of plaintiff, Robert Davis, to disqualify Wayne Circuit Chief Judge Timothy M. Kenny, and the rest of the Wayne Circuit Judges, in an underlying election matter filed by plaintiff. Judge Kenny denied the motion, and it was assigned for de novo review to Macomb Circuit Judge James M. Biernat. See MCR 2.003(D)(3)(a)(ii). Judge Biernat granted the motion as to Judge Kenny, but not as to the remaining Wayne Circuit Judges.
A referral was made for the underlying election matter to be reassigned to a different Wayne Circuit judge. On September 8, 2022, Judge Susan Hubbard was assigned to the case. On September 12, 2022, Judge Hubbard recused herself and sua sponte the rest of the Wayne Circuit bench. Judge Hubbard also questioned the validity of Chief Judge Kenny's order assigning the case to her.
While not cited or discussed by plaintiff or defendants, we take judicial notice, see MRE 201, of a September 13, 2022 order issued at 3:35 p.m. by Wayne Circuit Judge Brian Sullivan that reassigned the underlying election case to Judge Qiana Lillard, with the stated reason: "Judge Biernat's Disqualification Order." We also note that, in general, MCR 2.2003(D)(4)(a) allows assignment of an action to another judge of the same court upon the disqualification of a judge. Neither party has provided this Court with an explanation for the potential conflict between the September 12 and September 13 orders. Given that it is the more recent order, this Court presumes that the September 13 order issued by Judge Sullivan is controlling.
Returning to the matter at hand, plaintiff seeks superintending control to compel compliance with the September 12, 2022 order issued by Judge Hubbard that disqualified the entire Wayne Circuit Court, i.e., ordering a referral to SCAO to assign a judge who is not on the Wayne Circuit bench. However, as noted, it appears that the September 13, 2022 order is the more recent order and that it is controlling. As a result, the complaint for superintending control is dismissed because another remedy is available to plaintiff. MCR 3.302(B); In re Payne, 444 Mich. 679, 687; 514 N.W.2d 121 (1994). To that end, he may seek leave to appeal from the September 13, 2022 order assigning the matter from Judge Kenny to Judge Lillard. "An appeal would be an adequate remedy, and a complaint for superintending control must be dismissed when one is available." In re Payne, 444 Mich. at 687, citing MCR 3.302(D)(2).