Clemens v. Bruce
329 N.W.2d 522
Mich. Ct. App.
1982
Check Treatment
Per Curiam.

Plaintiffs brought this action to obtain rescission of a land contract on grounds of misrepresentation and inability of defendant vendors to convey clear title. Defendants counterclaimed for foreclosure. In the course of a nonjury trial, plaintiffs’ claim for rescission for misrepresentation was dismissed. Plaintiffs’ claim for rescission for defendants’ inability to convey clear title was held in abeyance and defendants were ordered to cure any defect in their title. The court found for defendants on the counterclaim and ordered that a judgment of forfeiture would enter unless plaintiffs paid defendants $4,000 in overdue *37 payments within 90 days. Plaintiffs appeal by right.

Prior to trial, plaintiffs claimed that the judge was personally biased and prejudiced against their attorney and moved to disqualify the judge pursuant to GCR 1963, 912.2(2). After an evidentiary hearing, the motion was denied by a visiting judge who had been assigned by the state court administrator to hear it. Ordinarily, actual personal prejudice must be shown before disqualification is mandated. See, for example, Adams v Adams, 100 Mich App 1, 16; 298 NW2d 871 (1980). However, in Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975), the Court said:

"A hearing before an unbiased and impartial decisionmaker is a basic requirement of due process.
"The United States Supreme Court has disqualified judges and decisionmakers without a showing of actual bias in situations where 'experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable’. Among the situations identified by the Court as presenting that risk are where the judge or decision-maker
"(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 prior participation as an accuser, investigator, factfinder or initial decisionmaker.” (Footnotes omitted.)

Here the record reveals a serious dispute between plaintiffs’ attorney and the trial judge over appointment of counsel for indigent criminal defendants. The dispute led plaintiffs’ attorney to file a complaint against the judge with the Judicial *38 Tenure Commission which was still pending at the time of trial. The circumstances presented here thus fall within factors (2) and (3) of the test stated in Crampton. The circumstances suggested such a risk of actual prejudice on the part of the judge that due process required his disqualification even absent a showing of actual prejudice. See Auto Workers Flint Federal Credit Union v Kogler, 32 Mich App 257, 259; 188 NW2d 184 (1971), in which disqualification was found to be mandated in part because a grievance before the state bar filed by one of plaintiffs attorneys against the trial judge was pending, although the Court also referred to other, unspecified conduct of the trial judge. See also People v Lowenstein, 118 Mich App 475; 325 NW2d 462 (1982), in which the Court held that an arrest warrant was invalid because not issued by a neutral and detached magistrate where the magistrate in question had been sued by defendant. Our decision is not to be construed as suggesting that the trial judge was guilty of any actual impropriety.

To prevent the issue from arising on remand, we note that, contrary to the contention made in plaintiffs’ brief on appeal, the record reveals that the parties settled plaintiffs’ claim for rescission for defendants’ inability to convey clear title. We further note that the trial court file contains documents, dated subsequently to plaintiffs’ claim of appeal, which indicate that defendants’ counterclaim has also been settled.

Reversed and remanded for further proceedings before a different judge.