Durell v. Mayo Foundation, C1-88-1921

Decision Date04 October 1988
Docket NumberNo. C1-88-1921,C1-88-1921
PartiesMichael DURELL, individually, and as Trustee for the Heirs of Rose Durell, Decedent, Petitioner, v. MAYO FOUNDATION, d/b/a Mayo Clinic, et al., Respondents.
CourtMinnesota Court of Appeals

Syllabus by the Court

Mandamus will not lie to compel removal of trial judge who has determined that allegations of prejudice are insubstantial.

James Malcolm Williams, Minneapolis, for petitioner.

Craig Beck, Dorsey & Whitney, Rochester, for respondents.

Considered at Special Term and decided by WOZNIAK, C.J., and LANSING and KALITOWSKI, JJ., without oral argument.

SPECIAL TERM OPINION

WOZNIAK, Chief Judge.

FACTS

Petitioner has brought a civil action alleging medical malpractice and tortious conduct. Two prior petitions to this court, challenging pretrial rulings on a discovery motion and a request for change of venue, have been denied. Petitioner has already used his notice of removal pursuant to Minn.R.Civ.P. 63.03 to obtain the removal of one judge. Petitioner now seeks to remove another judge, alleging he is disqualified from hearing the case because the spouse of the judge is employed by a hospital (not a party to this case) which sometimes transfers cases to respondent hospitals, the judge's spouse was treated once by respondent hospitals, and the judge's father served his medical residency at respondent hospitals in the 1920's.

The trial judge found there was an insufficient showing of prejudice and refused to honor the request for removal. Petitioner now seeks a writ of mandamus.

DECISION

Mandamus will lie to compel the performance of a clearly required act, but it cannot control judicial discretion. Minn.Stat. Sec. 586.01 (1986). Having previously removed one judge as a matter of right, petitioner is required to establish the judge now assigned is actually prejudiced. Minn.R.Civ.P. 63.03.

At the hearing on petitioner's request for removal, his own counsel acknowledged it is for the trial judge to determine whether they can be totally fair and impartial, and if they determine that they can, the request must be denied. Whether to honor a request for removal based on allegations of actual prejudice is a matter for the trial court's discretion. See Nachtsheim v. Wartnick, 411 N.W.2d 882, 891 (Minn.Ct.App.1987), pet. for rev. denied (Minn. Oct. 28, 1987). Mandamus is an inappropriate remedy.

We are also troubled by counsel's frequent resort to extraordinary remedies....

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8 cases
  • Veches v. Majewski
    • United States
    • Minnesota Court of Appeals
    • June 18, 2012
    ...a request for removal based on allegations of actual prejudice is a matter for the [district] court's discretion." Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988) (emphasis omitted), review denied (Minn. Nov. 16, 1988). On April 18, 2011, appellant moved to disqualify the assig......
  • Neumann v. Neumann, No. A04-240 (MN 9/7/2004)
    • United States
    • Minnesota Supreme Court
    • September 7, 2004
    ...a district court judge should recuse based on allegations of actual prejudice is within his or her discretion. Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988). A judge may be removed only for an "affirmative showing of prejudice" on the part......
  • Krupke v. N. Star Mut. Ins. Co.
    • United States
    • Minnesota Court of Appeals
    • March 25, 2013
    ...for recusal. Haefele v. Haefele, 621 N.W.2d 758, 766 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001); Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988). Krupke first argues that the district court judge should have recused because Krupk......
  • Pedro v. Pedro, C6-92-137
    • United States
    • Minnesota Court of Appeals
    • August 11, 1992
    ...discretion whether or not to honor a request for removal of a judge based on allegations of actual prejudice. Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn.App.1988), pet. for rev. denied (Minn. Nov. 16, 1988). In order for bias or prejudice to be disqualifying it "must stem from an extr......
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