People v. Lowenstein

• Decision Date: 09 November 1982
• Docket Number: 58217,Docket Nos. 56581
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Leonard LOWENSTEIN, Defendant-Appellee. 118 Mich.App. 475, 325 N.W.2d 462
• Court: Court of Appeal of Michigan — District of US

Page 462

325 N.W.2d 462

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Leonard LOWENSTEIN, Defendant-Appellee.

Docket Nos. 56581, 58217.

118 Mich.App. 475, 325 N.W.2d 462

Court of Appeals of Michigan.

Submitted June 15, 1982.

Decided July 23, 1982.

Released for Publication Nov. 9, 1982.

[118 MICHAPP 478] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Richard H. Browne, Asst. Pros. Atty., for the People.

Denenberg, Tuffley, Thorpe, Bocan & Patrick by Robert F. Helfand and Susan Tukel, Southfield, for defendant-appellee.

Before HOLBROOK, P.J., and T.M. BURNS and McDONALD, ^* JJ.

PER CURIAM.

On January 12, 1979, defendant was charged with making a threatening phone call, M.C.L. Sec. 750.540e(1)(a); M.S.A. Sec. 28.808(5)(1)(a), and carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. [118 MICHAPP 479] Sec. 28.424. The prosecution appeals by leave granted the January 21, 1981, dismissal of the threatening phone call charge. It appeals as of right the dismissal of the carrying a concealed weapon charge.

On January 12, 1979, the Southfield City Attorney swore out an arrest warrant before 46th District Court Magistrate Jeffrey Faintuck claiming that defendant had threatened him in a telephone call a few days earlier. Defendant was arrested later that day. He was also charged with carrying a concealed weapon after a pistol was found in his possession during arrest.

Over the next few weeks, all three 46th District Court judges disqualified themselves from hearing the cases against defendant. Subsequently, 47th District Court Judge Michael Hand was assigned to hear the cases. On February 8, 1979, Judge Hand orally indicated at the pretrial conference that he would dismiss the threatening telephone call charge because the arrest warrant had not been issued by a neutral and detached magistrate. On May 11, 1979, he dismissed the case.

The prosecutor then appealed to the circuit court. On January 4, 1980, the circuit court judge hearing the case gave the prosecutor the option of having a different magistrate rewrite the arrest warrant or having Judge Hand "set forth with specificity his reasons for determining the appearance of impropriety". Consequently, the circuit court judge issued an order directing Judge Hand to supplement the record by specifying his reasons for dismissal. He was given 30 days to comply with the order. This order was sent to the 46th Judicial District Court on February 1, 1980. However, despite prosecution letters sent to Judge Hand on April 4 and May 14, 1980, requesting compliance, he did not respond until January 5, 1981. Three [118 MICHAPP 480] days earlier, the prosecutor had drafted and submitted a proposed supplementation of the order which Judge Hand eventually signed.

In the meantime, defendant (acting in propria persona) appealed the order of remand for supplementation of the record on September 19, 1980, to this Court. However, this Court denied the application on October 15, 1980. On October 31, 1980, defendant applied for rehearing. This application was denied on November 18, 1980.

On November 26, 1980, defendant filed a motion to dismiss. This motion was refiled by his newly-appointed counsel on January 7, 1981.

On January 20, 1981, pursuant to a phone call from the circuit court, Judge Hand sent a letter to the circuit court listing his four reasons for dismissing the arrest warrant.

The reasons were:

"1. The Magistrate Jeffrey Faintuck, while he was Assistant Prosecuting Attorney, had previously prosecuted the defendant on other charges.

"2. The Magistrate, although the complaint and warrant was asserted to be on information and belief, was actually personally acquainted with the complaining witness and had been in an adverse position to him on previous occasions.

"3. That the Magistrate Jeffrey Faintuck was the appointee of a three judge court where each of the three judges of that court had disqualified herself or himself because of pending litigation between the defendant herein, Leonard Lowenstein, and the judges and public figures of the City of Southfield.

"4. That the Magistrate Jeffrey Faintuck had been the defendant in a suit brought by Mr. Lowenstein against Faintuck and others in the amount of ten million dollars, so in my opinion he was not a disinterested person."

[118 MICHAPP 481] The circuit court affirmed the dismissal order on January 21, 1981. Within two weeks, a different circuit court judge dismissed the concealed weapon charge.

The first issue on appeal is whether or not the magistrate was "neutral and detached". Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2123, 32 L.Ed.2d 783, 788 (1972), established a two-part test for determining who may qualify as a magistrate with the power to issue search and arrest warrants. First, he or she must be neutral and detached. Second, the magistrate must be capable of determining whether or not probable cause exists for the requested arrest.

The prosecution argues that Shadwick's test is met because the magistrate was in fact the proper party to issue the arrest warrant. True, it argues, he could be disqualified for bias but the bias must be actual and the four factors do not show actual bias. People v. Peques, 104 Mich.App. 45, 46, 304 N.W.2d 482, 483 (1980): "The record must show actual bias or prejudice before a conviction will be reversed on the ground that the trial judge should have disqualified himself. People v. Elmore, 92 Mich.App. 678, 285 N.W.2d 417 (1979) * * *."

For a judge to be disqualified for bias, the bias must be extrajudicial. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). However, cases like Peques and Elmore do not deal with the present situation. Instead, they deal with how much of an allowance our courts will make for a judge's inherent human failings. No human being (even a judge) is completely prejudice-free. But our judicial system requires judges. Therefore, we make allowances. Under normal circumstances, we will assume (absent evidence to the contrary) that the judge is free [118 MICHAPP 482] enough from bias to make a tolerably nonpartisan decision. For example, a judge will occasionally preside over a case involving a defendant who had earlier pled guilty to the offense. Because this situation often enough arises and because the appearance of impropriety is not that high, we allow the trial judge to remain in charge of the case absent a showing of actual bias. People v. Rider, 93 Mich.App. 383, 286 N.W.2d 881 (1979). ¹ However, we realize that some situations are just too dangerous. Judges normally are not subjected to such special pressures and "under a realistic appraisal of psychological tendencies in human weakness" ² we find that the appearance of justice requires the judge to disqualify himself. 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". Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). In fact, "even though a judge personally believes himself to be unprejudiced, unbiased and impartial, he should nevertheless certify his disqualification where there are circumstances of such a nature to cause doubt as to his partiality, bias or prejudice". Merritt v. Hunter, 575 P.2d 623, 624 (Okl.1978). ³ The right to a fair [118 MICHAPP 483] tribunal is a right grounded in due process. United States v. Sciuto, 531 F.2d 842 (CA 7, 1976).

Certain situations have been identified as requiring dismissal when the appearance of impropriety is too great even though no actual prejudice is shown. First, "[a]n official associated in any way with the prosecution of alleged offenders, because of his allegiance to law enforcement, cannot be allowed to be placed in a position requiring the impartial judgment necessary to shield the citizen from unwarranted intrusions into his privacy". State v. Ruotolo, 52 N.J. 508, 512, 247 A.2d 1, 3 (1968). In other words, an otherwise duly appointed magistrate who just happens to be connected with law enforcement may not constitutionally issue warrants. Vance v. North Carolina, 432 F.2d 984 (CA 4, 1970). ⁴ In fact, the Supreme Court unanimously reversed in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979), where the magistrate ("Town Justice") accompanied the police on the actual search pursuant to the search warrant and aided the police in [118 MICHAPP 484] determining what to seize. Even though the magistrate was duly authorized to issue the warrant and probable cause may have existed, the search was declared invalid because it had not been issued by a "neutral and detached" magistrate. See also Thomason v. State, 148 Ga.App. 513, 251 S.E.2d 598 (1978).

Next, the magistrate (or judge) must disqualify himself if he had a pecuniary interest in the outcome. The United States Supreme Court unanimously reversed in Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), where the magistrate (justice of the peace) received $5 (his only salary) for each search warrant he issued but received no compensation when he turned down the request. A judge must also disqualify himself when one of the parties happens to be his client. Armstrong v. Ann Arbor, 58 Mich.App. 359, 227 N.W.2d 343, lv. den. 394 Mich. 783 (1975), In re Zafiratos, 259 Or. 276, 486 P.2d 550 (1971). He must also disqualify himself where a party happens to be a relative. Barnes v. Cooper, 507 S.W.2d 157 (Ky.1974). ⁵ Furthermore, he must disqualify himself in a subsequent contempt trial where he was the victim of the contempt. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). In fact, he must disqualify himself even if he...