Clemens v. Bruce

• Decision Date: 16 February 1983
• Docket Number: Docket No. 58486
• Citation: 122 Mich.App. 35,329 N.W.2d 522
• Parties: Donald CLEMENS and Patricia L. Clemens, Plaintiffs-Appellants, v. Pauline BRUCE, Defendant-Appellee, and Catherine Poe, Defendant. 122 Mich.App. 35, 329 N.W.2d 522
• Court: Court of Appeal of Michigan — District of US

Page 522

329 N.W.2d 522

Donald CLEMENS and Patricia L. Clemens Plaintiffs-Appellants, v. Pauline BRUCE, Defendant-Appellee and Catherine Poe, Defendant.

Docket No. 58486.

122 Mich.App. 35, 329 N.W.2d 522

Court of Appeals of Michigan.

Submitted Oct. 7, 1982.

Decided Dec. 8, 1982.

Released for Publication Feb. 16, 1983.

[122 MICHAPP 36] Paul B. Newman, Newaygo, for plaintiffs-appellants.

Murphy & Caris by Theodore A. Caris, Fremont, for defendant-appellee Bruce.

Before R.B. BURNS, P.J., and MacKENZIE and BROWN ^*, JJ.

PER CURIAM.

Plaintiffs brought this action to obtain rescission of a land contract on grounds of misrepresentation and inability of defendant vendors to convey clear title. Defendants counterclaimed for foreclosure. In the course of a nonjury trial, plaintiffs' claim for rescission for misrepresentation was dismissed. Plaintiffs' claim for rescission for defendants' inability to convey clear title was held in abeyance and defendants were ordered to cure any defect in their title. The court found for defendants on the counterclaim and ordered that a judgment of forfeiture would enter unless plaintiffs paid defendants $4,000 in overdue [122 MICHAPP 37] payments within 90 days. Plaintiffs appeal by right.

Prior to trial, plaintiffs claimed that the judge was personally biased and prejudiced against their attorney and moved to disqualify the judge pursuant to GCR 1963, 912.2(2). After an evidentiary hearing, the motion was denied by a visiting judge who had been assigned by the state court administrator to hear it. Ordinarily, actual personal prejudice must be shown before disqualification is mandated. See, for example, Adams v. Adams, 100 Mich.App. 1, 16, 298 N.W.2d 871 (1980). However, in Crampton v. Dep't of State, 395 Mich. 347, 351, 235 N.W.2d 352 (1975), the Court said:

"A hearing before an unbiased and impartial decisionmaker is a basic requirement of due process.

"The United States Supreme Court has disqualified judges and decisionmakers without a showing of actual bias in situations where 'experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable'. Among the situations identified by the Court as presenting that risk are where the judge or decisionmaker

"(1) has a pecuniary interest in the outcome;

"(2) 'has been the target of personal abuse or criticism from the party before him';

"(3) is 'enmeshed in [other] matters involving petitioner * * * '; or

"(4) might have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decisionmaker." (Footnotes omitted.)

Here the record reveals a serious dispute between plaintiffs' attorney and the trial judge over appointment of counsel for indigent criminal defendants. The dispute led plaintiffs' attorney to file a complaint against the judge with the Judicial [122 MICHAPP 38] Tenure Commission which was still pending at the time of trial. The circumstances presented here thus fall within factors (2) and (3) of the test stated in Crampton. The circumstances suggested such a risk of actual prejudice on the part of the judge that due process required his...