In Re Burress and Kizer ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re BURRESS and KIZER.
DANIEL A. BURRESS and THOMAS KIZER, JR., UNPUBLISHED
April 21, 2022
Plaintiffs-Appellants,
v No. 356653
Livingston Circuit Court
LIVINGSTON CIRCUIT COURT JUDGE and LC No. 19-000121-AS
53RD DISTRICT COURT,
Defendants-Appellees.
Before: BOONSTRA, P.J., and M. J. KELLY and SWARTZLE, JJ..
PER CURIAM.
Plaintiffs appeal by right the circuit court’s order dismissing their petition for
superintending control. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiffs are residents of Livingston County. On December 28, 2018, plaintiffs attempted
to file with the 53rd District Court an “Emergency Motion and Order to Show Cause” at the
Livingston County Courthouse. Plaintiffs have described their motion as
requesting the Attorney General of the State of Michigan and the Livingston
County Prosecutor (or their designated representative) to appear before the court
and provide their position on the approval of proposed criminal complaints against
the Honorable Theresa Brennan, an elected judge of said court, and now retired
Michigan State Police Detective Sean Furlong, and in the event they declined to
approve the same, to comment on the amount of security that they felt would be
appropriate, and determine which office would oversee the prosecution.
This motion was not associated with an existing case or case number.
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On the day in question, Judge William Hultgren had been assigned by the State Court
Administrative Office (SCAO) to serve as a visiting judge and assist with the docket, and was the
only judge working at the courthouse that day,1 which was the Friday before the New Year’s
holiday weekend. Upon arrival, plaintiffs attempted to file their motion along with proposed
criminal complaints. These were returned by the court clerk for being defective because they did
not indicate that they had been endorsed by the Livingston County prosecuting attorney. Plaintiffs
told the clerk that they did not require the prosecuting attorney’s approval, and the clerk returned
to Judge Hultgren with the documents. After several hours, the clerk returned and informed
plaintiffs that the documents would be accepted after plaintiffs posted a security bond in the
amount of $150,000, $75,000 for each proposed criminal complaint. Plaintiffs were unable to post
the bond, and they asked for a written order reflecting that the court would only accept the
documents for filing upon the posting of a security bond, which Judge Hultgren entered.
Plaintiffs subsequently filed their petition for superintending control, requesting that the
circuit court vacate Judge Hultgren’s order, disqualify Chief Judge Miriam Cavanaugh2 from
“involving herself in this or any other way” with plaintiffs and their filings, disqualify Judge
Hultgren from further related proceedings on the basis of “the improper direction and assistance”
he had allegedly received from Chief Judge Cavanaugh regarding this matter, and order the district
court to accept their filings without a security bond. Although the specifics are disputed by the
parties, it appears that Judge Hultgren consulted at least briefly with Chief Judge Cavanaugh when
first confronted with plaintiffs’ documents. The Chief Judge had previously recused herself from
a grand jury proceeding involving plaintiffs and former Judge Brennan because of potential bias
or the appearance of impropriety. Therefore, plaintiffs argued, the Chief Judge should not have
involved herself in any way with their motion, even to the extent of advising Judge Hultgren.
Plaintiffs also claimed that the $150,000 security bond “as a precondition to the filing of their
submissions” was “unreasonable, punitive, obstructive, and an unconstitutional denial of [their]
right to access to the courts.” Finally, plaintiffs contended that Judge Hultgren lacked jurisdiction
to issue his order because he was not assigned to handle disqualifications and because the blind-
draw system needed to be utilized to select a judge.
The circuit court dismissed plaintiffs’ petition, holding that plaintiffs’ emergency motion
effectively sought to file a citizen criminal complaint and, accordingly, MCL 764.1(1) and
MCR 6.101(C) controlled and required that a security bond be posted in the absence of a
prosecutor’s endorsement, which plaintiffs indisputably did not have. The court determined that
1
Plaintiffs asserted in their petition for superintending control that Judge Carol Sue Reader and
her staff “were present in chambers and available to serve”; however, defendants responded that
Judge Reader was on vacation on December 28, was set to retire on December 31, 2018, and was
only in the courthouse to clean out her office.
2
The parties refer to Judge Cavanaugh as “Chief Judge” Cavanaugh; therefore for simplicity we
will also refer to her by this honorific. We note that Livingston County’s government website
indicates that Judge Cavanaugh was elected as a probate court judge, and currently serves as “Chief
Judge Livingston County Probate Court; Presiding Judge Probate; Presiding Judge Criminal;
Presiding Judge Juvenile Court.” See https://www.livgov.com/courts/Pages/Judge-Miriam-
Cavanaugh-profile.aspx (last accessed March 28, 2022).
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the security bond was not an unconstitutional filing fee but, rather, a requirement for the filing of
a citizen’s criminal complaint as required by statute. Without the bond, there was no duty to accept
the filing. The circuit court also ruled that plaintiffs had failed to show that the amount was
unreasonable. Regarding disqualification, the circuit court held that plaintiffs were not entitled to
relief because, ultimately, the Chief Judge did not handle the issue but allowed it to be resolved by
Judge Hultgren.
Moreover, the circuit court noted that plaintiffs were aware at the courthouse that Judge
Hultgren had spoken to the Chief Judge but failed to raise any concerns regarding disqualification
until the filing of the petition for superintending control; in other words, plaintiffs never asked
Judge Hultgren or Chief Judge Cavanaugh to disqualify themselves. Finally, regarding plaintiffs’
jurisdictional challenges, the circuit court held that the blind-draw system was inapplicable
because no case had been filed; plaintiffs did not file the security bond and, accordingly, their
documents were not accepted. The circuit court also noted that Judge Hultgren was not assigned
plaintiff’s case as part of his docket; rather, he decided only whether the documents would be
accepted and filed that day.
This appeal followed.
II. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a circuit court’s decision to deny a request
for superintending control. In re Grant, 250 Mich App 13, 14; 645 NW2d 79 (2002). A court
abuses its discretion when its decision is “outside the range of principled outcomes.” People v
Watkins, 491 Mich 450, 467; 818 NW2d 296 (2012). We review de novo questions of statutory
interpretation, as well as the construction and application of the court rules, Dextrom v Wexford
Co, 287 Mich App 406, 416; 789 NW2d 211 (2010), constitutional issues, Barrow v Detroit
Election Comm, 301 Mich App 404, 411; 836 NW2d 498 (2013), and jurisdictional challenges,
Forest Hills Cooperative v Ann Arbor, 305 Mich App 572, 615; 854 NW2d 172 (2014).
“When interpreting a statute, [this Court] must ascertain the Legislature’s intent,” which is
accomplished “by giving the words selected by the Legislature their plain and ordinary meanings,
and by enforcing the statute as written.” Griffin v Griffin, 323 Mich App 110, 120; 916 NW2d
292 (2018) (quotation marks and citation omitted). If a statute is unambiguous, it must be applied
as plainly written. McQueer v Perfect Fence Co, 502 Mich 276, 286; 971 NW2d 584 (2018). This
Court may not read something into the statute “that is not within the manifest intent of the
Legislature as derived from the words of the statute itself.” Id. (quotation marks and citation
omitted).
III. ANALYSIS
Plaintiffs argue that the circuit court erred by dismissing their petition for superintending
control. We disagree.
“A superintending control order enforces the superintending control of a court over lower
courts or tribunals.” Beer v City of Fraser Civil Service Com’n, 127 Mich App 239, 242; 338
NW2d 197 (1983). The process of seeking an order of superintending control is not an appeal;
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rather, a petitioner seeking an order of superintending control requests that a higher court order a
lower court or tribunal to perform a clear legal duty it has refused to perform. People v Yeotis
(Flint Municipal Judge), 383 Mich 429, 432; 175 NW2d 750 (1970); Michigan Ass'n for Retarded
Citizens v Wayne Co Probate Judge, 79 Mich App 487, 492; 261 NW2d 60 (1977). This Court
has previously set forth the general principles governing the issuance of an order of superintending
control:
Superintending control is an extraordinary remedy generally limited to
determining whether a lower court exceeded its jurisdiction, acted in a manner
inconsistent with its jurisdiction, or failed to proceed according to law.
Superintending control is the proper method to challenge the general practices of
an inferior court. For superintending control to lie, the plaintiff must establish that
the defendant has failed to perform a clear legal duty and that plaintiff is otherwise
without an adequate legal remedy. [In re Credit Acceptance Corp, 273 Mich App
594, 598; 733 NW2d 65 (2007), aff’d sub nom Credit Acceptance Corp v 46th Dist
Court, 481 Mich 833 (2008) (citations omitted).]
MCL 764.1(1), as amended by 2014 PA 389, which was the version in effect at the time of
this action and the circuit court’s decision, provided:
For the apprehension of persons charged with a felony, misdemeanor, or
ordinance violation, a judge or district court magistrate may issue processes to
implement this chapter, except that a judge or district court magistrate shall not
issue a warrant for other than a minor offense unless an authorization in writing
allowing the issuance of the warrant is filed with the judge or district court
magistrate and, except as otherwise provided in this act, the authorization is signed
by the prosecuting attorney, or unless security for costs is filed with the judge or
district court magistrate. [Emphasis added.]
Similarly, MCR 6.101(C) (emphasis added) provides: “A complaint may not be filed without a
prosecutor’s written approval endorsed on the complaint or attached to it, or unless security for
costs is filed with the court.”
In People v Holbrook, 373 Mich 94, 97; 128 NW2d 484 (1964), our Supreme Court,
interpreting an older but similar statute regarding citizen criminal complaints, stated that “a
complainant is permitted to proceed on his own if security for costs is filed with the [court]. The
filing of costs assures payment to the [court], and is also a test of the complainant’s belief in the
guilt of the person accused.” In People v Joker, 63 Mich App 421, 427; 234 NW2d 550 (1975),3
this Court, interpreting a prior version of MCL 764.1(1), stated that a trial court would not issue
3
Joker was decided before November 1, 1990, and is therefore not binding on this Court.
MCR 7.215(J)(1). However, “[w]e think it reasonable to draw the negative inference that we are
not strictly required to follow uncontradicted opinions from this Court decided before November 1,
1990, but we think they are nevertheless considered to be precedent and entitled to significantly
greater deference than are unpublished cases.” Woodring v Phoenix Ins Co, 325 Mich App 108,
114-115; 923 NW2d 607 (2018).
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an “arrest warrant” unless the “private citizen . . . is prepared to file security for costs.” This Court
explicitly rejected the contention that a constitutional deprivation could occur if the security
requirement were enforced, holding that “even if the complainant was indigent he was not entitled
to post a purely nominal sum as security for costs.” Id. at 428-429.
Plaintiffs, however, contend that their “Emergency Motion and Order to Show Cause” was
not an attempt to file citizen criminal complaints and that, accordingly, MCL 764.1(1) and
MCR 6.101(C) were inapplicable. Plaintiffs’ argument elevates form over substance; the mere
fact they chose to label their filing as a motion to show cause does not change its fundamental
nature. See Adams v Adams, 276 Mich App 704, 710-711; 742 NW2s 399 (2007) (“It is well
settled that the gravamen of an action is determined by reading the complaint as a whole, and by
looking beyond mere procedural labels to determine the exact nature of the claim.”) (citation
omitted). We agree with the circuit court that plaintiffs cannot “have it both ways” and that
MCL 764.1(1) and MCR 6.101(C) applied to plaintiff’s motion, regardless of its label. Plaintiffs’
own petition in the circuit court, and statements made to the court, reveal that they sought to initiate
criminal proceedings as private citizens and that they were aware of the security bond requirement.
Plaintiffs sought to have the district court require the Attorney General and Livingston County
prosecutor “to appear before the court and provide their position on the approval of proposed
criminal complaints against” former Judge Brennan and Detective Furlong. Plaintiffs also sought
direction “on the amount of security that they felt would be appropriate.” At the hearing on their
petition for superintending control, plaintiffs stated that “[i]t wasn’t an investigation. The
investigation had been done. It was to file criminal charges, but to give the prosecutor and the
attorney general the first option to decide whether or not they were going to do it, and if not, then
to issue a warrant.” Therefore, by plaintiffs’ own admissions and statements, we see no error in
the circuit court’s determination that they sought to file a citizens’ complaint and that MCL 764.1
and MCR 6.101 governed.
Under both MCL 764.1(1) and MCR 6.101(C), plaintiffs were required either to obtain the
prosecutor’s endorsement, which they indisputably did not do, or to provide security for costs.
Neither the statute nor the court rule provide for a third option of compelling the Attorney General
and county prosecuting attorney to appear in court to provide a pre-filing assessment or otherwise
discuss the issue with plaintiffs. The procedure for filing civilian criminal complaints was
explained to plaintiffs at the courthouse, and their own filings indicate they were aware of it.
Without a security bond or endorsement, there was no duty for the clerk to accept their documents
for filing. The fact that plaintiffs chose to file their documents on a Friday afternoon, before a
holiday, has no bearing on the existence of defendants’ legal duty; moreover, the fact that plaintiffs
did not have the funds for security is also immaterial. See Joker, 63 Mich App at 427. The plain
language of the statute and court rule do not allow for deviation; plaintiffs were subject to a
statutory requirement that “assures payment to the justice, and is also a test of the complainant’s
belief in the guilt of the person accused.” Holbrook, 373 Mich at 97. Nor have plaintiffs advanced
any substantive or persuasive argument or authority in support of their contention that the amount
was unreasonable. “An appellant may not merely announce his or her position and leave it to this
Court to discover and rationalize the basis for his or her claims.” Bill & Dena Brown Trust v
Garcia, 312 Mich App 684, 695; 880 NW2d 269 (2015) (quotation marks and citation omitted).
When “a party fails to cite any supporting legal authority for its position, the issue is deemed
abandoned.” Id. (quotation marks and citation omitted).
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Plaintiffs also argue that the circuit court erred by not ordering discovery before ruling on
their petition, but MCR 3.302(E)(3)(c) explicitly leaves this issue to the court’s discretion, and
“[n]othing in the context of the rule specifically requires that the issuing court conduct a trial-like
proceeding . . . if the record is clear.” In re Rupert, 205 Mich App 474, 477; 517 NW2d 794
(1994). The circuit court acted within its discretion in this case, because the true nature of
plaintiffs’ filing could be determined by reference to the existing record. See Adams, 276 Mich
App at 710-711.
Further, we find plaintiffs’ disqualification arguments to be unpersuasive. We note first
that, because plaintiffs failed to raise this issue before the challenged judge, this issue is
unpreserved. See MCR 2.003(B) and MCR 2.003(D)(3)(a)(i). “Unpreserved claims are reviewed
for plain error, which ‘occurs at the trial court level if (1) an error occurred (2) that was clear or
obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court
proceedings.’ ” Cheesman v Williams, 311 Mich App 147, 161; 874 NW2d 385 (2015) (citation
omitted).
MCR 2.003(C)(1) sets forth reasons for disqualification of a judge, including bias and the
appearance of impropriety. Subrule (D) provides that “[f]or courts other than the Supreme Court,
when a judge is disqualified, the action must be assigned to another judge of the same court, or, if
one is not available, the state court administrator shall assign another judge.”
MCR 2.003(D)(4)(a). “A trial judge is presumed to be fair and impartial, and any litigant who
would challenge this presumption bears a heavy burden to prove otherwise.” In re Susser Estate,
254 Mich App 232, 237; 657 NW2d 147 (2002).
Plaintiffs have failed to overcome this heavy burden. As the circuit court recognized,
plaintiffs requested that the Chief Judge be disqualified from further involving herself and that the
matter be assigned to a different judge; indeed, this is exactly what happened. Chief Judge
Cavanaugh did not handle this matter; instead, Judge Hultgren did so, in keeping with
MCR 2.003(D)(4)(a), which provides that “the action must be assigned to another judge of the
same court . . . .” Additionally, plaintiffs have failed to show evidence of impropriety or bias.
Judge Hultgren handled this matter and issued the written order. Although he may have briefly
consulted with the Chief Judge, plaintiffs merely speculate that the Chief Judge improperly
directed him. We also note that plaintiffs failed to raise any concern about the chief judge’s brief
involvement until after the security bond was ordered. The circuit court stated that plaintiff’s
disqualification argument appeared to be nothing more than “after the fact sour grapes based on
Judge Hultgren’s order regarding security,” and we agree with that assessment.
Finally, we discern no jurisdictional issues. MCL 600.826 authorizes our Supreme Court
and SCAO to direct elected probate judges to assist other courts and perform specific assignments.
MCR 8.103(4) gives SCAO the authority to “recommend to the Supreme Court the assignment of
judges where courts are in need of assistance and carry out the direction of the Supreme Court as
to the assignment of judges.” MCR 8.111 governs the assignment of cases to judges in Michigan
courts. MCR 8.111(B) (emphasis added) provides that “[a]ll cases must be assigned by lot, unless
a different system has been adopted by local court administrative order under the provisions of
subrule 8.112. Assignment will occur at the time the case is filed or before a contested hearing or
uncontested dispositional hearing in the case, as the chief judge directs.”
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In this matter, no case was filed because plaintiffs did not submit the required security
bond, thereby making MCR 8.111(B) and the blind-draw system inapplicable.4 Filing and
assignment would have occurred only if plaintiffs’ documents had been accepted for filing.
Plaintiffs cite no authority to support their position that the blind-draw system applies to pre-filed
matters. Additionally, Judge Hultgren was assigned by the SCAO to assist with the docket, and
this is what he did in this matter. Although the SCAO assignment provided that it did not cover
disqualifications, this was not a disqualification proceeding; it was a proposed citizens’ complaint
that plaintiffs sought to file on a Friday before a holiday weekend at a time with low staff in the
courthouse. Plaintiffs asserted that their claims were time-sensitive, hence the “emergency” label
on their documents, and the visiting judge merely exercised his given authority to resolve the
matter.
Plaintiffs have not shown that defendants failed to perform a clear legal duty. Credit
Acceptance Corp, 273 Mich App at 598. Moreover, plaintiffs’ arguments concerning judicial
disqualification and jurisdiction are unpersuasive. Therefore, the circuit court did not abuse its
discretion by denying the petition for superintending control.
Affirmed.
/s/ Mark T. Boonstra
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
4
Moreover, to the extent that plaintiffs contend that their attempted filing was of a civil action of
some kind, plaintiffs have not demonstrated that their proposed filing satisfied the requirements of
the Michigan Court Rules. See, e.g., MCR 2.101(B) (“A civil action is commenced by filing a
complaint with a court.”); MCR 2.111(B) (setting forth the required contents of a complaint);
MCR 1.109(D) (setting forth the required contents of documents filed with a court, including a
caption setting forth the names of the parties and the assigned case number).
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