Czuprynski v. Bay Circuit Judge

• Decision Date: 14 March 1988
• Docket Number: Docket No. 96554
• Citation: Czuprynski v. Bay Circuit Judge, 420 N.W.2d 141, 166 Mich.App. 118 (Mich. App. 1988)
• Parties: Edward M. CZUPRYNSKI, Plaintiff, v. BAY CIRCUIT JUDGE, Defendant, and County of Bay, Amicus Curiae. 166 Mich.App. 118, 420 N.W.2d 141
• Court: Court of Appeal of Michigan

Page 141

420 N.W.2d 141

Edward M. CZUPRYNSKI, Plaintiff, v. BAY CIRCUIT JUDGE, Defendant and County of Bay, Amicus Curiae.

Docket No. 96554.

166 Mich.App. 118, 420 N.W.2d 141

Court of Appeals of Michigan.

Submitted Dec. 14, 1987.

Decided Feb. 1, 1988.

Released for Publication March 14, 1988.

[166 MICHAPP 119] Goodman, Eden, Millender & Bedrosian (by Ernest Goodman), and Paul H. Stevenson and Patricia M. Strunck, of counsel, Detroit, for plaintiff.

Clary, Nantz, Wood, Hoffius, Rankin & Cooper (by Douglas W. VanEssen and Robert W. White), Grand Rapids, for defendant.

George B. Mullison, Pros. Atty., Patrick O. Duggan, Chief Asst. Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., Bay City, amicus curiae.

[166 MICHAPP 120] Before HOOD, P.J., and SAWYER and JACKSON, ^* JJ.

SAWYER, Judge.

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, Sec. 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 [166 MICHAPP 121] the circuit courts by art 6, Sec. 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 NW2d 693 (1972), quoting In re Fredericks, 285 Mich 262; 280 NW 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, 194 N.W.2d 693, 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 [166 MICHAPP 122] jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law." In re Fredericks, 285 Mich 262, 267 [280 NW 464] (1938). In [People v ] Flint Municipal Judge [383 Mich 429; 175 NW2d 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 NW 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:

[166 MICHAPP 123] (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. at 547, 315 N.W.2d 524 and 393 Mich. at 142-143, 224 N.W.2d 24.

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, 413 N.W.2d 413.

II

The procedure for disqualification of a trial judge because of bias or prejudice against a party [166 MICHAPP 124] 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 [166 MICHAPP 125] granted by other judges of the Genesee County Circuit Court.

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This Court is...