People v. Houston
| Decision Date | 20 October 1989 |
| Docket Number | Docket Nos. 114712,114981 and 115110 |
| Citation | 446 N.W.2d 543,179 Mich.App. 753 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Yolanda HOUSTON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peter BINDER, Defendant-Appellant. OAKLAND COUNTY PROSECUTOR, Plaintiff-Appellee, v. OAKLAND CIRCUIT JUDGE, Defendant-Appellant. 179 Mich.App. 753, 446 N.W.2d 543 |
| Court | Court of Appeal of Michigan — District of US |
[179 MICHAPP 754] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Richard Thompson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Thomas S. Richards, Asst. Pros. Atty., for the People and Oakland County Prosecutor Richard Thompson.
Elizabeth L. Jacobs, Detroit, for Yolanda Houston.
Steven Fishman, Detroit, for Peter Binder.
Gropman, Lebow & Tobin by Michael J. Lebow, Birmingham, for Oakland Circuit Judge David F. Breck.
F. Randall Karfonta, Detroit, amicus curiae for Criminal Defense Attorneys of Michigan.
Before SHEPHERD, P.J., and BEASLEY and GRIBBS, JJ.
On January 18, 1989, Oakland Circuit Court Chief Judge Robert C. Anderson [179 MICHAPP 755] disqualified Circuit Judge David F. Breck from hearing cases involving the possession of over 650 grams of a controlled substance and ordered that Judge Breck not be assigned any capital cases under the controlled substances sections of the Public Health Code, M.C.L. Secs. 333.7401(2)(a)(i), 333.7403(2)(a)(i); M.S.A. Secs. 14.15(7401)(2)(a)(i), 14.15(7403)(2)(a)(i), or involving conspiracy to violate those sections. On January 19, 1989, Chief Judge Anderson disqualified Judge Breck from presiding over defendants Houston's and Binder's cases. Judge Breck appeals as of right and defendants Houston and Binder appeal by leave granted. The cases have been consolidated on appeal. We reverse.
The essential issue on appeal is whether the chief judge abused his discretion in ordering Judge Breck disqualified in the Houston and Binder cases, and in all cases involving possession of over 650 grams of a controlled substance. We conclude that the chief judge erred in applying the "appearance of bias" test and should have required a showing of actual bias or prejudice.
The circumstances under which a judge may be disqualified are set forth in MCR 2.003(B):
A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge
(1) is interested as a party;
(2) is personally biased or prejudiced for or against a party of attorney;
(3) has been consulted or employed as an attorney in the matter in controversy;
(4) was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years;
(5) is within the third degree (civil law) of consanguinity[179 MICHAPP 756] or affinity to a person acting as an attorney or within the sixth degree (civil law) to a party;
(6) or the judge's spouse or minor child owns a stock, bond, security, or other legal or equitable interest in a corporation which is a party, but this does not apply to
(a) investments in securities traded on a national securities exchange registered under the Securities Exchange Act of 1934, 15 USC 78a et seq.;
(b) shares in an investment company registered under the Investment Company Act of 1940, 15 USC 80a-1 et seq.;
(c) securities of a public utility holding company registered under the Public Utility Holding Company Act of 1935, 15 USC 79 et seq.;
(7) is disqualified by law for any other reason.
As a general rule, a trial judge is not disqualified absent a showing of actual bias or prejudice. Band v. Livonia Associates, 176 Mich.App. 95, 118, 439 N.W.2d 285 (1989); Czuprynski v. Bay Circuit Judge, 166 Mich.App. 118, 124, 420 N.W.2d 141 (1988). The party moving for disqualification bears the burden of proving actual bias or prejudice. Id.
A showing of actual bias is not necessary where "experience teaches that the probability of actual bias ... is too high to be constitutionally tolerable." Crampton v. Dep't of State, 395 Mich. 347, 351, 235 N.W.2d 352 (1975). Certain situations have been identified as posing such a risk:
[W]here 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 [179 MICHAPP 757] prior participation as an accuser, investigator, fact finder or initial decisionmaker. [Crampton, 395 Mich at 351, 235 N.W.2d 352.]
The test for whether or not a trial judge should be disqualified has been stated as follows:
The test is not whether or not actual bias exists but also whether there was "such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused." [People v. Lowenstein, 118 Mich.App. 475, 482, 325 N.W.2d 462 (1982), lv. den. 414 Mich. 947 (1982), quoting Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).]
In this case, the prosecutor alleged that Judge Breck could not be impartial because (1) he ruled contrary to legal precedent that the mandatory life sentence provision of M.C.L. Sec. 333.7401(2)(a)(i); M.S.A. Sec. 14.15(7401)(2)(a)(i) was unconstitutional, (2) he erroneously ruled on several pretrial motions in the case against defendant Binder, and (3) he wrote open letters to the bench expressing his personal concern about the mandatory life sentencing provision.
There are no allegations that Judge Breck had a pecuniary interest in the outcome of the cases involved here, had been the target of personal abuse or personal criticism from the prosecutor so as to become embroiled in the controversy, was enmeshed in other legal matters involving the prosecutor, or may have prejudiced the cases because of his prior participation as an accuser, investigator, factfinder or initial decisionmaker. See Crampton, 395 Mich. at 351-355, 235 N.W.2d 352. Although there is a serious dispute between Judge Breck and the prosecutor regarding the mandatory life [179 MICHAPP 758] sentencing provision of the controlled substances act, that dispute has not led to actions other than motions for disqualification. See Clemens v. Bruce, 122 Mich.App. 35, 37-38, 329 N.W.2d 522 (1982). Judge Breck did not have prior adversarial relationships with the defendants, or with the prosecutor here. See Lowenstein, 118 Mich.App. at 482, 325 N.W.2d 462; People v. Gauntlett, 134 Mich.App. 737, 761, 352 N.W.2d 310 (1984), modified 419 Mich. 909, 353 N.W.2d 463 (1984).
The alleged prejudice in this case involves the trial court's rulings on the constitutionality of a statute and on various pretrial matters. There is no allegation of personal bias against any party. Accordingly, we believe the chief judge should have required a showing of actual bias. Wayne Co. Prosecutor v. Doerfler, 14 Mich.App. 428, 438-441, 165 N.W.2d 648 (1968). Since the wrong standard was used to support the order of disqualification, and since we find no evidence of personal bias, the orders disqualifying Judge Breck are reversed.
The prosecutor correctly asserts that a trial judge may not strike down a statute as unconstitutional where such ruling is contrary to appellate precedent and "obviously based upon his widely publicized personal belief about what the law should be rather than what it is." In the Matter of Hague, 412 Mich. 532, 552, 315 N.W.2d 524 (1982). However, the chief judge specifically stated that he was not concerned with Judge Breck's ruling on the constitutionality of the statute, so we need not consider that issue here. In any event, we do not believe that motions for disqualification are the proper means for correcting the alleged error, particularly since the prosecutor has challenged Judge Breck's rulings...
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