Burress v. Livingston Circuit Court Judge (In re Burress), 356653

CourtCourt of Appeal of Michigan (US)
Writing for the CourtPer Curiam
PartiesIn re BURRESS and KIZER. v. LIVINGSTON CIRCUIT COURT JUDGE and 53RD DISTRICT COURT, Defendants-Appellees. DANIEL A. BURRESS and THOMAS KIZER, JR., Plaintiffs-Appellants,
Decision Date21 April 2022
Docket Number356653


DANIEL A. BURRESS and THOMAS KIZER, JR., Plaintiffs-Appellants,


No. 356653

Court of Appeals of Michigan

April 21, 2022


Livingston Circuit Court LC No. 19-000121-AS

Before: Boonstra, P.J., and M. J. Kelly and Swartzle, JJ.

Per Curiam

Plaintiffs appeal by right the circuit court's order dismissing their petition for superintending control. We affirm.


Plaintiffs are residents of Livingston County. On December 28, 2018, plaintiffs attempted to file with the 53rd District Court an "Emergency Motion and Order to Show Cause" at the Livingston County Courthouse. Plaintiffs have described their motion as

requesting the Attorney General of the State of Michigan and the Livingston County Prosecutor (or their designated representative) to appear before the court and provide their position on the approval of proposed criminal complaints against the Honorable Theresa Brennan, an elected judge of said court, and now retired Michigan State Police Detective Sean Furlong, and in the event they declined to approve the same, to comment on the amount of security that they felt would be appropriate, and determine which office would oversee the prosecution

This motion was not associated with an existing case or case number.


On the day in question, Judge William Hultgren had been assigned by the State Court Administrative Office (SCAO) to serve as a visiting judge and assist with the docket, and was the only judge working at the courthouse that day, [1] which was the Friday before the New Year's holiday weekend. Upon arrival, plaintiffs attempted to file their motion along with proposed criminal complaints. These were returned by the court clerk for being defective because they did not indicate that they had been endorsed by the Livingston County prosecuting attorney. Plaintiffs told the clerk that they did not require the prosecuting attorney's approval, and the clerk returned to Judge Hultgren with the documents. After several hours, the clerk returned and informed plaintiffs that the documents would be accepted after plaintiffs posted a security bond in the amount of $150, 000, $75, 000 for each proposed criminal complaint. Plaintiffs were unable to post the bond, and they asked for a written order reflecting that the court would only accept the documents for filing upon the posting of a security bond, which Judge Hultgren entered.

Plaintiffs subsequently filed their petition for superintending control, requesting that the circuit court vacate Judge Hultgren's order, disqualify Chief Judge Miriam Cavanaugh[2] from "involving herself in this or any other way" with plaintiffs and their filings, disqualify Judge Hultgren from further related proceedings on the basis of "the improper direction and assistance" he had allegedly received from Chief Judge Cavanaugh regarding this matter, and order the district court to accept their filings without a security bond. Although the specifics are disputed by the parties, it appears that Judge Hultgren consulted at least briefly with Chief Judge Cavanaugh when first confronted with plaintiffs' documents. The Chief Judge had previously recused herself from a grand jury proceeding involving plaintiffs and former Judge Brennan because of potential bias or the appearance of impropriety. Therefore, plaintiffs argued, the Chief Judge should not have involved herself in any way with their motion, even to the extent of advising Judge Hultgren. Plaintiffs also claimed that the $150, 000 security bond "as a precondition to the filing of their submissions" was "unreasonable, punitive, obstructive, and an unconstitutional denial of [their] right to access to the courts." Finally, plaintiffs contended that Judge Hultgren lacked jurisdiction to issue his order because he was not assigned to handle disqualifications and because the blind-draw system needed to be utilized to select a judge.

The circuit court dismissed plaintiffs' petition, holding that plaintiffs' emergency motion effectively sought to file a citizen criminal complaint and, accordingly, MCL 764.1(1) and MCR 6.101(C) controlled and required that a security bond be posted in the absence of a prosecutor's endorsement, which plaintiffs indisputably did not have. The court determined that


the security bond was not an unconstitutional filing fee but, rather, a requirement for the filing of a citizen's criminal complaint as required by statute. Without the bond, there was no duty to accept the filing. The circuit court also ruled that plaintiffs had failed to show that the amount was unreasonable. Regarding disqualification, the circuit court held that plaintiffs were not entitled to relief because, ultimately, the Chief Judge did not handle the issue but allowed it to be resolved by Judge Hultgren.

Moreover, the circuit court noted that plaintiffs were aware at the courthouse that Judge Hultgren had spoken to the Chief Judge but failed to raise any concerns regarding disqualification until the filing of the petition for superintending control; in other words, plaintiffs never asked Judge Hultgren or Chief Judge Cavanaugh to disqualify themselves. Finally, regarding plaintiffs' jurisdictional challenges, the circuit court held that the blind-draw system was inapplicable because no case had been filed; plaintiffs did not file the security bond and, accordingly, their documents were not accepted. The circuit court also noted that Judge Hultgren was not assigned plaintiff's case as part of his docket; rather, he decided only whether the documents would be accepted and filed that day.

This appeal followed.


This Court reviews for an abuse of discretion a circuit court's decision to deny a request for superintending control. In re Grant, 250 Mich.App. 13, 14; 645 N.W.2d 79 (2002). A court abuses its discretion when its decision is "outside the range of principled outcomes." People v Watkins, 491 Mich. 450, 467; 818 N.W.2d 296 (2012). We review de novo questions of statutory interpretation, as well as the construction and application of the court rules, Dextrom v Wexford Co, 287 Mich.App. 406, 416; 789 N.W.2d 211 (2010), constitutional issues, Barrow v Detroit Election Comm, 301 Mich.App. 404, 411; 836 N.W.2d 498 (2013), and jurisdictional challenges, Forest Hills Cooperative v Ann Arbor, 305 Mich.App. 572, 615; 854 N.W.2d 172 (2014).

"When interpreting a statute, [this Court] must ascertain the Legislature's intent," which is accomplished "by giving the words selected by the Legislature their plain and ordinary meanings, and by enforcing the statute as written." Griffin v Griffin, 323 Mich.App. 110, 120; 916 N.W.2d 292 (2018) (quotation marks and citation omitted). If a statute is unambiguous, it must be applied as plainly written. McQueer v Perfect Fence Co, 502 Mich. 276, 286; 971 N.W.2d 584 (2018). This Court may not read something into the statute "that is not within the manifest intent of the Legislature as derived from the words of the statute itself." Id. (quotation marks and citation omitted).


Plaintiffs argue that the circuit court erred by dismissing their petition for superintending control. We disagree.

"A superintending control order enforces the superintending control of a court over lower courts or tribunals." Beer v City of Fraser Civil Service Com'n, 127 Mich.App. 239, 242; 338 N.W.2d 197 (1983). The process of seeking an order of superintending control is not an appeal;


rather, a petitioner seeking an order of superintending control requests that a higher court order a lower court or tribunal to perform a clear legal duty it has refused to perform. People v Yeotis (Flint Municipal Judge), 383 Mich. 429, 432; 175 N.W.2d 750 (1970); Michigan Ass'n for Retarded Citizens v Wayne Co Probate Judge, 79 Mich.App....

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