Charter Township of Van Buren v. Garter Belt Inc.
| Decision Date | 25 September 2003 |
| Docket Number | No. 238571.,238571. |
| Parties | CHARTER TOWNSHIP OF VAN BUREN, Plaintiff-Appellee, v. GARTER BELT INC., d/b/a LEGG'S LOUNGE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Wayne Circuit Court LC No. 00-036479-CZ.
Before: Markey, P.J., and Cavanagh and Saad, JJ.
Defendant appeals by right the trial court's order granting plaintiff summary disposition and a permanent injunction enforcing Van Buren Township's ordinance prohibiting nudity at liquor-licensed establishments. Defendant also appeals the denial of its motion to vacate judgment and disqualify the trial judge. We first find no abuse of discretion occurred denying defendant's motion for judicial disqualification and conclude due process does not require disqualification under the totality of the circumstances. We also hold that state law does not preempt the Township's ordinance because we conclude the Legislature did not intend its regulation of nudity at liquor-licensed establishments to change the long-standing broad authority of local governments to regulate liquor trafficking within their jurisdiction. We consider last defendant's constitutional claims.1 We hold that both Van Buren Township's ordinance and the permanent injunction are constitutionally valid.
Defendant owns and operates a bar in Van Buren Township that features nude dancing and is licensed by Michigan's Liquor Control Commission. In March 1999, Van Buren Township enacted ordinance 02-16-99(2) (§ 6-69 of plaintiff's code of ordinances), which prohibits persons "appearing in a state of nudity" from frequenting, loitering, working, or performing in any establishment licensed or subject to licensing by the Michigan Liquor Control Commission. It is not disputed that defendant featured nude dancing long before the adoption of § 6-69 and that Van Buren Township's ordinance is worded identically to that part of a Clinton Township ordinance this Court held "constitutionally valid and enforceable" in Jott, Inc v Clinton Twp, 224 Mich App 513, 548; 569 NW2d 841 (1997).
After defendant failed to comply with § 6-69, plaintiff sued seeking to enjoin defendant from featuring nude dancing contrary to the ordinance. Defendant answered, and by affirmative defenses and counter-claim, sought to have the ordinance declared unconstitutional. Plaintiff moved for summary disposition, arguing that the ordinance was not a complete ban on nude entertainment, but instead was a valid liquor control ordinance designed to combat known adverse secondary adverse effects associated with the combination of nudity and consumption of alcohol. Defendant argued that nude dancing is a form of expression protected by the First Amendment, and that plaintiff improperly enacted its ordinance without proof that defendant's bar caused any adverse secondary effects. Specifically, defendant argued that subsequent decisions of United States Supreme Court superceded Jott.
The trial court disagreed that a legislative body must hold an evidentiary hearing to determine whether a proposed ordinance would further a legitimate government interest. Instead, the trial court concluded that a legislative body could consider any material it deems pertinent and may also employ common sense. The court concluded that under the Twenty-first Amendment the State and local units of government have authority to control liquor traffic within their jurisdiction even though such regulation may incidentally impact activity protected by the First Amendment. Finding that the case at bar was controlled by Jott, the trial court granted summary disposition to plaintiff and permanently enjoined defendant from violating the ordinance.
On December 28, 2001, this Court denied defendant's motion for a stay of the judgment and injunction, and denied reconsideration on January 9, 2002. On January 23, 2002, our Supreme Court denied defendant's application for leave to appeal. This Court denied defendant's motion for peremptory reversal on April 18, 2002.
We review the trial court's factual findings on a motion for disqualification for an abuse of discretion but the application of the facts to the law is reviewed de novo. Cain v Dep't of Corrections, 451 Mich 470, 503 n 38; 548 NW2d 210 (1996); Armstrong v Ypsilanti Twp, 248 Mich App 573, 596; 640 NW2d 321 (2001).
A judge is disqualified when he cannot hear a case impartially. Cain, supra at 503. But a party challenging a judge "must overcome a heavy presumption of judicial impartiality." Id. at 497. In general, the challenger must prove a judge harbors actual bias or prejudice for or against a party or attorney that is both personal and extrajudicial. MCR 2.003(B)(1); Cain, supra at 495; Armstrong, supra at 597. Here, the public comments Judge O'Hair purportedly made in 1996 when he was Wayne County Prosecutor do not establish the requisite actual bias or prejudice to overcome the presumption of judicial impartiality.
At the hearing on defendant's motion, Judge O'Hair denied any personal bias or prejudice. He also denied knowing that defendant's owner, who had contributed funds to a "Dump O'Hair" election year effort in 1996, was even involved in this case. Indeed, O'Hair asserted he did not take such matters personally and had "long forgotten" events defendant raised until his motion to disqualify was filed after the court had already ruled. Further, O'Hair affirmed that his decision was controlled by the law, and not by any discretionary fact finding on his part. On de novo review, Chief Judge Sapala found that O'Hair had been "a long-time sitting Judge of the Wayne County Circuit Court, blessed with an impeccable reputation with regard to integrity." Judge Sapala also found that comments attributed to O'Hair as prosecutor five years earlier on public issues were insufficient to demonstrate actual bias in light of O'Hair's impeccable reputation. The Chief Judge's factual findings are reviewed with deference, and the record here does not establish that an abuse occurred in finding that O'Hair was not actually biased or prejudiced. Cain, supra at 503.
We also find no merit in defendant's argument that the appearance of bias is too high to be constitutionally tolerated. Due process requires judicial disqualification without showing actual prejudice only in the most extreme cases. Cain, supra at 497-498. A showing of actual bias is not necessary to disqualify a judge where "`experience teaches that the probability of actual bias . . . is too high to be constitutionally tolerable.'" Crampton v Dept of State, 395 Mich 347, 351; 235 NW2d 352 (1975), quoting Withrow v Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975). Our Supreme Court noted such situations include: (1) where the judge has a pecuniary interest in the outcome; (2) where the judge has been the subject of personal abuse or criticism from the party before him; (3) where the judge is enmeshed in other maters involving the complaining party; or (4) where the judge might have prejudged the case because of having previously acted as an accuser, fact-finder, or initial decision-maker. Crampton, supra at 351. Although not exclusive, the Crampton categories should be narrowly interpreted in light of examples provided by the Supreme Court and are "not to be viewed as catch-all provisions for petitioners desiring disqualification." Cain, supra at 500 n 36.
Defendant does not claim that Judge O'Hair held a pecuniary interest in the instant case, but does claim that the other Crampton categories apply. But defendant produced only 1996 newspaper reports that defendant's principal owner, who is not a party to the instant case, had been critical of Judge O'Hair's criminal law enforcement activity when he was prosecutor five years earlier. Defendant's owner had also contributed to an anti-O'Hair political fund. According to press reports, O'Hair responded to the attack that he would not be intimidated from enforcing the law. "[T]he mere fact that a judge has been subjected to press criticism in connection with a case or a party does not necessarily require the judge's disqualification." Cain, supra at 515, quoting Illinois v Coleman, 168 Ill 2d 509, 541; 660 N.E.2d 919 (1995). Here, there was no evidence to contradict Judge O'Hair's claim that he did not know who owned defendant until after rendering his ruling and had not taken long-forgotten criticism personally. Narrowly construed, the Crampton "personal abuse" category does not apply.
Similarly, Crampton categories three and four, narrowly construed, do did not require recusal of Judge O'Hair based on five-year-old activity as prosecutor to enforce the criminal law and public comments related to that activity. Defendant's claims do not demonstrate O'Hair was "enmeshed" with a party in other matters, or that he had prejudged civil enforcement of a township ordinance regulating alcohol-serving establishments. Generally, a prosecutor is not disqualified from future judicial activity unless the judge had directly participated in the same case, MCR 2.003(B)(3), or directly participated in the prosecution of the defendant within the prior two years, MCR 2.003(B)(4). See People v Williams (After Remand), 198 Mich App 537, 544; 499 NW2d 404 (1993), and People v Delongchamps, 103 Mich App 151, 156; 302 NW2d 626 (1981). Also, once hot topics will cool with the passage of time. Cain, supra at 515. And, "`Prior written attacks upon a judge are . . . legally insufficient to support a charge of bias or prejudice on the part of a judge toward an author.'" Id. at 516 n 52, quoting United States v Bray, 546 F2d 851, 858 (CA 10, 1976). Finally, "The mere fact that a judge has previously expressed himself on a particular point of law is not sufficient to show personal bias or prejudice." Id. at 857.
The totality of the circumstances must be examined to determine if the present case is so extreme that...
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