VAN BUREN TP. v. GARTER BELT INC.

• Decision Date: 26 November 2003
• Docket Number: Docket No. 238571.
• Parties: Charter TOWNSHIP of VAN BUREN, Plaintiff-Appellee, v. GARTER BELT INC., d/b/a Legg's Lounge, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

673 N.W.2d 111

258 Mich. App. 594

Charter TOWNSHIP of VAN BUREN, Plaintiff-Appellee, v. GARTER BELT INC., d/b/a Legg's Lounge, Defendant-Appellant.

Docket No. 238571.

Court of Appeals of Michigan.

Submitted September 16, 2003, at Detroit.

Decided September 25, 2003, at 9:00 a.m.

Released for Publication November 26, 2003.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Patrick B. McCauley, David J. Szymanski, and Patrick Burkett), Southfield, for the plaintiff.

Rubin & Rubin, P.L.L.C. (by Allan S. Rubin), and Shafer & Associates, P.C. (by Bradley J. Shafer), Southfield, Lansing, for the defendant.

Before: MARKEY, P.J., and MARK J. CAVANAGH and SAAD, JJ.

MARKEY, P.J.

Defendant Garter Belt, Inc., appeals by right the trial court's order granting plaintiff, Charter Township of Van Buren, summary disposition and a permanent injunction enforcing the township's ordinance prohibiting nudity at establishments licensed to sell alcohol. Defendant also appeals the denial of its motion to vacate the judgment and disqualify the trial judge. We first find that no abuse of discretion occurred with regard to the denial of defendant's motion for judicial disqualification and conclude that due process does not require disqualification under the totality of the circumstances presented in this matter. We also hold that state law does not preempt the township's ordinance because we conclude that the Legislature did not intend its regulation of nudity at establishments licensed to sell alcohol to change the longstanding broad authority of local governments to regulate liquor trafficking within their jurisdiction. We consider last defendant's constitutional claims.¹ We hold that both Van Buren Township's ordinance and the permanent injunction are constitutionally valid.

I. Summary of Material Facts and Proceedings

Defendant owns and operates a bar in Van Buren Township that features nude dancing and is licensed by the Michigan Liquor Control Commission (LCC). In March 1999, Van Buren Township enacted Ordinance No. 02-16-99(2) (§ 6-69 of plaintiff's code of ordinances), which prohibits persons "appearing in a state of nudity" from frequenting, loitering, working, or performing in any establishment licensed or subject to licensing by the Michigan Liquor Control Commission. It is not disputed that defendant featured nude dancing long before the adoption of § 6-69 and that Van Buren Township's ordinance is worded identically to that part of a Clinton Township ordinance that this Court held "constitutionally valid and enforceable" in Jott, Inc. v. Clinton Charter Twp., 224 Mich.App. 513, 548, 569 N.W.2d 841 (1997).

After defendant failed to comply with § 6-69, plaintiff sued, seeking to enjoin defendant from featuring nude dancing that violates the ordinance. Defendant answered and, by affirmative defenses and a counterclaim, sought to have the ordinance declared unconstitutional. Plaintiff moved for summary disposition, arguing that the ordinance was not a complete ban on nude entertainment, but, instead, was a valid liquor control ordinance designed to combat known adverse secondary adverse effects associated with the combination of nudity and the consumption of alcohol. Defendant argued that nude dancing is a form of expression protected by the First Amendment, U.S. Const., Am. I, and that plaintiff improperly enacted its ordinance without proof that defendant's bar caused any adverse secondary effects. Specifically, defendant argued that subsequent decisions of the United States Supreme Court superseded Jott.

The trial court disagreed that a legislative body must hold an evidentiary hearing to determine whether a proposed ordinance would further a legitimate governmental interest. Instead, the trial court concluded that a legislative body could consider any material it deems pertinent and may also employ common sense. The court concluded that under the Twenty-first Amendment, U.S. Const., Am. XXI, the state and local units of government have authority to control liquor traffic within their jurisdiction even though such regulation may incidentally affect activity protected by the First Amendment. Finding that the case at bar was controlled by Jott, the trial court granted summary disposition to plaintiff and permanently enjoined defendant from violating the ordinance.

On December 28, 2001, this Court denied defendant's motion for a stay of the judgment and the injunction. We denied reconsideration on January 9, 2002. On January 23, 2002, our Supreme Court denied defendant's application for leave to appeal. This Court denied defendant's motion for peremptory reversal on April 18, 2002.

II. Judicial Disqualification

We review for an abuse of discretion the trial court's factual findings on a motion for disqualification, but the application of the facts to the law is reviewed de novo. Cain v. Dep't of Corrections, 451 Mich. 470, 503 n. 38, 548 N.W.2d 210 (1996); Armstrong v. Ypsilanti Charter Twp., 248 Mich.App. 573, 596, 640 N.W.2d 321 (2001).

A judge is disqualified when he cannot hear a case impartially. Cain, supra at 503, 548 N.W.2d 210. But a party challenging the impartiality of a judge "must overcome a heavy presumption of judicial impartiality." Id. at 497, 548 N.W.2d 210. In general, the challenger must prove a judge harbors actual bias or prejudice for or against a party or attorney that is both personal and extrajudicial. MCR 2.003(B)(1); Cain, supra at 495, 548 N.W.2d 210; Armstrong, supra at 597, 640 N.W.2d 321. Here, the public comments Judge John D. O'Hair purportedly made in 1996 when he was the Wayne County Prosecuting Attorney do not establish the requisite actual bias or prejudice to overcome the presumption of judicial impartiality.

At the hearing on defendant's motion, Judge O'Hair denied having any personal bias or prejudice. He also denied knowing that defendant's owner, who had contributed funds to a "Dump O'Hair" election year effort in 1996, was even involved in this case. Indeed, O'Hair asserted that he did not take such matters personally and had "long forgotten" events defendant raised until the motion to disqualify was filed after the court had already ruled. Further, O'Hair affirmed that his decision was controlled by the law, and not by any discretionary fact-finding on his part. On review de novo, Chief Judge Michael F. Sapala found that O'Hair had been "a long-time sitting Judge of the Wayne County Circuit Court, blessed with an impeccable reputation with regard to integrity." Chief Judge Sapala also found that comments on public issues attributed to O'Hair while he was the prosecutor five years earlier were insufficient to demonstrate actual bias in light of O'Hair's impeccable reputation. The chief judge's factual findings are reviewed with deference, and the record here does not establish that an abuse occurred in finding that O'Hair was not actually biased or prejudiced. Cain, supra at 503, 548 N.W.2d 210.

We also find no merit in defendant's argument that the appearance of bias is too high to be constitutionally tolerated. Due process requires judicial disqualification without a showing of actual prejudice only in the most extreme cases. Cain, supra at 497-498, 548 N.W.2d 210. A showing of actual bias is not necessary to disqualify a judge 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), quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Our Supreme Court noted such situations include: (1) where the judge has a pecuniary interest in the outcome; (2) where the judge has been the subject of personal abuse or criticism from the party before him; (3) where the judge is enmeshed in other matters involving the complaining party; or (4) where the judge might have prejudged the case because of having previously acted as an accuser, fact-finder, or initial decision maker. Crampton, supra at 351, 235 N.W.2d 352. Although not exclusive, the Crampton categories should be narrowly interpreted in light of examples provided by the Supreme Court and are "not to be viewed as catch-all provisions for petitioners desiring disqualification." Cain, supra at 500 n. 36, 548 N.W.2d 210. Defendant does not claim that Judge O'Hair held a pecuniary interest in the instant case, but does claim that the other Crampton categories apply. But defendant produced only newspaper reports from 1996 showing that defendant's principal owner, who is not a party to the instant case, had been critical of Judge O'Hair's criminal law enforcement activity when the judge was the prosecutor five years earlier. Defendant's owner had also contributed to an anti-O'Hair political fund. According to press reports, O'Hair responded to the attack by stating that he would not be intimidated from enforcing the law. "`The mere fact that a judge has been subjected to press criticism in connection with a case or a party does not necessarily require the judge's disqualification.'" Cain, supra at 515, 548 N.W.2d 210, quoting Illinois v. Coleman, 168 Ill.2d 509, 541, 214 Ill.Dec. 212, 660 N.E.2d 919 (1995). Here, there was no evidence to contradict Judge O'Hair's claim that he did not know who owned defendant until after rendering his ruling and had not taken long-forgotten criticism personally. Narrowly construed, the Crampton "personal abuse" category does not apply.

Similarly, Crampton categories three and four, narrowly construed, did not require recusal of Judge O'Hair on the basis of his activity as a prosecutor five years before in enforcing the criminal law and his public comments related to that activity. Defendant's claims do not demonstrate that Judge O'Hair was "enmeshed" with a party in other matters, or that he had prejudged civil enforcement of a township ordinance regulating establishments that serve alcohol. Generally, a prosecutor is not disqualified...