People v. Lobsinger, Docket No. 17026

• Decision Date: 11 September 1975
• Docket Number: Docket No. 17026
• Citation: 64 Mich.App. 284,235 N.W.2d 761
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald LOBSINGER, Defendant-Appellant. 64 Mich.App. 284, 235 N.W.2d 761
• Court: Court of Appeal of Michigan — District of US

Page 761

235 N.W.2d 761

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald LOBSINGER, Defendant-Appellant.

Docket No. 17026.

64 Mich.App. 284, 235 N.W.2d 761

Court of Appeals of Michigan.

Sept. 11, 1975.

Released for Publication Dec. 16, 1975.

[64 MICHAPP 284] James E. Wells, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, App. Chief, Ronald P. Weitzman, Asst. Pros. Attys., for plaintiff-appellee.

Before DANHOF, P.J., and R. B. BURNS and MAHER, JJ.

PER CURIAM.

Defendant was charged with assault and battery. M.C.L.A. § 750.81; M.S.A. § 28.276. After two judges of the Recorder's Court disqualified themselves, this case was assigned to Judge Ravitz. Defendant, Donald Lobsinger, made a motion to disqualify Judge Ravitz and the judge denied it. The question was brought before another judge in the Recorder's Court and it was again denied. Defendant was convicted by a jury of assault and battery and appeals.

We have here two men with diametrically opposed political views. One is the trial judge and the other the defendant. Prior to the judge's election, the two men had appeared on a radio program and at various political demonstrations and rallies. It is safe to say that neither man has a high opinion of the other. However, since there appears to have been virtually no personal contact between the judge and defendant before the trial, their opinions of one another seem to stem primarily from the image projected by the mass media of two outspoken individuals who find themselves on different sides of most important political questions. Whether this mutual disrespect transcends political disagreement and reaches a point of personal intolerance becomes crucial in the present context.

GCR 1963, 405.1 provides in pertinent part:

'The judge shall be deemed disqualified to hear the action when the judge: * * *

'(3) is personally biased or prejudiced for or against any party. * * *'

The court rule requires an actual showing of prejudice or bias, Wayne County Prosecutor v. Doerfler, 14 Mich.App. 428, 165 N.W.2d 648 (1968), and '(u)nless the fact of prejudice or bias is established [64 MICHAPP 286] or the necessities of justice to the defendant require it, a change of judge is an unjustifiable wrong to the public', Kolowich v. Ferguson, 264 Mich. 668, 670, 250 N.W. 875, 875 (1933).

We must look to the record for apparent prejudice on the part of the trial judge. The proper point of inquiry is at the time of trial. It is not enough to say that defendant received an error free trial and therefore the record fails to demonstrate the trial judge's personal prejudice against defendant. ¹ Therefore, we draw our attention to a taped recording of a 1972 radio program, ² the trial judge's statement in denying defendant's motion for disqualification, ³ portions of the trial judge's [64 MICHAPP 287] testimony before the reviewing Recorder's Court judge, ⁴ and the reviewing judge's characterization of the trial judge's testimony. ⁵

[64 MICHAPP 288] We review the record in light of Wayne County Prosecutor v. Doerfler, supra, authored by Judge [64 MICHAPP 289] (now Justice) Fitzgerald. Doerfler involved a complaint seeking an adjudication that certain magazines were obscene and an injunction permanently restraining their possession, distribution or sale. A motion to disqualify the trial judge on the grounds that he was actively engaged in attempting to motivate the community against the sale of obscene literature was filed by defendants. The trial judge denied the motion, as did another circuit judge to whom the motion was assigned.

The trial judge in Doerfler had been a former president of the Archdiocesan Council of Catholic Men, an organization that worked on occasion with the National Office for Decent Literature to prevent the distribution of obscene literature to children. He was alleged to have been very active in these groups. Doerfler was not concerned with personal bias against any party or attorney but with alleged prejudice against the subject matter at issue in that case. However, its rationale is helpful to the decision in this case:

'A judge is not expected to bring with him to the bench a blank mind and personality, as he becomes, by necessity, a composition of the general experiences of his life, refined and honored by his legal training and legal experience so that the desired judicial temperament will hopefully emerge. To require a blank mind is unreasonable, but to demand an impartial and clear appraisal of each new case is not. A judge may well be subconsciously prejudiced in one way towards the evidence or the parties in a case before him. It is his duty [64 MICHAPP 290] not to permit these prejudices to override his responsibilities in providing a fair forum for the determination of controversy. This duty should ideally motivate the judge to request reassignment of the case if he is aware of any prejudices which he holds which would interfere with his impartiality. If the judge refuses to do so, and the appellate court finds from the record that the judge was apparently prejudiced, then reversal is often the only remedy.' 14 Mich.App. at 440, 165 N.W.2d at 654. (Footnotes omitted.)

The Court in Doerfler viewed the trial judge's activities to be 'no more than general public statements made with the intent of educating the community', and not an attack on any specific type of publication or definition and application of an obscenity statute. 14 Mich.App. at 441, 165 N.W at 654. The disqualification was found to have been properly denied.

The case at bar, although presenting a question of 'personal bias', is analogous in that it requires a determination as to whether personal animosity existed between the trial judge and defendant or whether it was purely a problem of conflicting ideologies. As can be seen by the footnoted portions of the record, in denying the motion for disqualification and in testifying before the reviewing Recorder's Court judge, Judge Ravitz acknowledged that 'some personal degree of animus' existed between him and defendant which was 'real'. Furthermore, although affirming Judge Ravitz' denial of defendant's motion, the reviewing judge characterized Judge Ravitz' testimony as admitting dislike for defendant. Apparently then, a degree of personal bias or prejudice did, in fact, exist.

This is not a situation where a trial judge has stated that he has no bias or prejudice. See, Kolowich v. Ferguson, supra, 264 Mich. at 670, 250 N.W. 875. Here, [64 MICHAPP 291] the trial judge acknowledged 'some degree of personal animus' and once that had been recognized, he should have disqualified himself from the case.

Reversed and remanded for a new trial.

1 We are aware of Armstrong v. Ann Arbor, 58 Mich.App. 359, 227 N.W.2d 343 (1975), where this Court did look to the manner in which the trial was conducted in order to determine whether a new trial should be ordered because of prejudice or bias to either party. However, in that case, an express waiver of disqualification shifted the focal point of the inquiry.

2 In 1972, on a local radio program, a 3-member panel which included the trial judge and defendant, discussed whether the Detroit Police Department's STRESS unit (Stop The Robberies, and Enjoy Safe Streets) should be abolished. An accurate summation of the extent of the trial judge's participation in that program is provided by the Recorder's Court judge who initially reviewed the trial judge's denial of defendant's motion for disqualification:

'Testimony (has been) taken on the motion and additional evidence received. Specifically, a tape recording of a radio forum in which both Judge Ravitz and Mr. Lobsinger appeared, along with Shelia Murphy. And a transcription of this radio program was received as evidence.

'It had been alleged by Mr. Lobsinger in his affidavit to disqualify Judge Ravitz that Judge Ravitz had, in fact, called him a Nazi during * * * this program. This Court has heard the tapes. And, as a matter of fact, * * * Judge Ravitz did not call Mr. Lobsinger a Nazi. As a matter of fact, there were no declarations of that nature. Only questions put purely in question form.

'I believe that the words in question were 'are you a member of a Nazi party?' 'Do you believe in Facism?' 'Do you believe in a police state.'

'And, as a matter of fact, I find, from listening to the tape that Judge Ravitz did not participate...