Mary Ann Lamkin v. Hamburg Township Board of Trustees

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
MARY ANN LAMKIN, UNPUBLISHED
November 19, 2020
Plaintiff-Appellant,
v No. 347064
Livingston Circuit Court
HAMBURG TOWNSHIP BOARD OF TRUSTEES, LC No. 15-028656-CZ
and HAMBURG TOWNSHIP ZONING
ADMINISTRATOR,
Defendants-Appellees.
MARY ANN LAMKIN,
Plaintiff-Appellee,
v No. 347744
Livingston Circuit Court
HAMBURG TOWNSHIP BOARD OF TRUSTEES, LC No. 15-028656-CZ
and HAMBURG TOWNSHIP ZONING
ADMINISTRATOR,
Defendants-Appellants.
Before: JANSEN, P.J., and FORT HOOD and RONAYNE KRAUSE, JJ.
PER CURIAM.
In Docket No. 347064, plaintiff, Mary Ann Lamkin, appeals by right the trial court’s order
entering a judgment of no cause of action issued in favor of defendants, Hamburg Township Board
of Trustees and Hamburg Township Zoning Administrator. In Docket No. 347744, defendants
appeal by right the trial court’s order denying their motion for sanctions, costs, and attorney fees.
-1-
This Court consolidated the appeals.1 In Docket No. 347064, we affirm. In Docket No. 347744,
we vacate and remand.
I. BACKGROUND
The instant matter is the latest battle in plaintiff’s decades-long struggle with her neighbors
and elected officials in Hamburg Township, Livingston County, regarding the use of plaintiff’s
and her neighbors’ properties on the northern shore of Oneida Lake.2 This particular dispute
involves plaintiff’s contention that one of her neighbors, Doug Braidwood, is operating an
industrial business on his property (the “Braidwood Property”) in contravention of applicable
zoning ordinances. Many of the properties on the northern shore of Oneida Lake, including
plaintiff’s property and the Braidwood Property, are only accessible from a public road, M-36, by
way of a private road called Island Shore Drive. Some prior litigation has involved various
property owners’ use of the portion of Island Shore Drive that crosses plaintiff’s property. In
contrast, the Braidwood Property is closer to M-36 than is plaintiff’s property. Thus, although the
Braidwood Property is only accessible via Island Shore Drive, in which plaintiff claims an interest,
there is no issue in this case involving the use of Island Shore Drive across plaintiff’s property.
Rather, plaintiff seeks to compel defendants to enforce the Hamburg Township zoning ordinance
as she construes it and to abate what she believes to be Braidwood’s violation of the ordinance and
creation of a nuisance per se.
Plaintiff, in propria persona, filed a complaint against defendants, seeking a writ of
mandamus, an order of superintending control,3 and an order to show cause. The trial court sua
sponte dismissed plaintiff’s complaint before it was served, and plaintiff appealed. On appeal, a
majority of this Court reversed the trial court’s dismissal without having afforded plaintiff advance
notice, an opportunity to be heard, and a reviewable record. Lamkin v Hamburg Twp Bd of
1
Mary Ann Lamkin v Hamburg Twp Bd of Trustees, unpublished order of the Court of Appeals,
entered March 1, 2019 (Docket No.347744).
2
We take judicial notice of this Court’s own records. See In re Albert, 383 Mich. 722, 724; 179
NW2d 20 (1970). In this case, we do so primarily for background purposes, and we emphasize
that plaintiff has in fact prevailed in a number of instances. See, e.g., Glazer v Lamkin, 201 Mich
App 432; 506 NW2d 570 (1993). Conversely, some of plaintiff’s efforts resulted in criminal
charges or convictions. See, e.g., People v Lamkin, unpublished per curiam opinion of the Court
of Appeals, issued July 25, 2013 (Docket No. 308695).
3
Plaintiff has since conceded that superintending control is not an appropriately available form
of relief. Even if plaintiff were not bound by that admission, see Chapdelaine v Sochocki, 247
Mich. App. 167, 177; 635 NW2d 339 (2001), we would agree. An order of superintending control
is functionally indistinguishable from a writ of mandamus, both being for the purpose of
compelling the performance of a clear legal duty, but superintending control is directed to a
lower court or tribunal rather than to an official. See In re Payne, 444 Mich. 679, 687-689; 514
NW2d 121 (1994); Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 679-681; 194
NW2d 693 (1972). We will therefore not entertain plaintiff’s arguments to the effect that the
trial court erred by focusing on her request for mandamus to the exclusion of her request for
superintending control.
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Trustees (Lamkin I), 318 Mich. App. 546, 549-552 (GLEICHER, J.), 552-553 (O’CONNELL, J.,
concurring); 899 NW2d 408 (2017). The third judge dissented from the majority’s reasoning, and
concurred in the result on alternative grounds that the trial court might have improperly precluded
plaintiff from moving for reconsideration, and would have only granted a narrow remand to
determine whether such a preclusion had actually occurred. Lamkin I, 318 Mich. App. at 553-557
(RONAYNE KRAUSE, P.J., concurring in part and dissenting in part). On August 21, 2017, the trial
court reopened the proceedings.
Shortly thereafter, plaintiff moved to disqualify the trial judge, Judge Michael P. Hatty,
who had presided over a number of plaintiff’s prior legal proceedings, under MCR 2.003(C)(1)(a)
and (b); and she requested an evidentiary hearing. Plaintiff argued that Judge Hatty was prejudiced
against her based on his prior rulings against her and “threatening” statements made during a May
18, 2017 status conference (apparently related to a separate action). Judge Hatty concluded that
he had no bias against plaintiff and denied plaintiff’s motion to disqualify. Plaintiff filed a motion
for reconsideration regarding her motion to disqualify, which was also denied. During the de novo
hearing before Chief Judge David J. Reader, plaintiff requested that Judge Reader recuse himself.
Plaintiff’s motion for the disqualification of Judge Reader was denied. However, the case was
referred to the Michigan State Court Administrative Office for judicial reassignment. In
November 2017, plaintiff filed a motion for a rehearing for correction of errors in the order entered
after the de novo review for disqualification of Judge Hatty. In January 2018, Judge Janelle A.
Lawless, on assignment from the State Court Administrative Office, denied plaintiff’s motion to
recuse Chief Judge Reader. In March 2018, Judge Susan Beebe Jordan entered an order denying
plaintiff’s motion for disqualification of Judge Hatty.
In December 2018, a bench trial was held before Judge Hatty. Plaintiff, in propria persona,
explained that her action was, at least in part, to establish that the Hamburg Township government
was corrupt, and she noted that she had “been probably their worst nightmare because I have been
politically active to bring forth all of the complaints that I have had about this government for over
40 years,” and this action was her first opportunity to prove that corruption. She explained that
her theory of the case was that the various Township officials had a pattern of acting in concert
with each other to selectively enforce or ignore ordinances “based on political motivation.” Much
of her attempted testimony and examination consisted of similar opinions or arguments, and she
frequently veered off into legally irrelevant matters that she believed were relevant to her desire to
prove the abovementioned corruption. The trial court, in a tremendous display of patience,
repeatedly explained to plaintiff that she was required to stay focused on the allegations in her
complaint, and that she was not permitted to make an argument while she was testifying as a
witness or asking questions of a witness. Plaintiff’s testimony is, as a consequence, difficult to
follow.4
4
In her brief, plaintiff characterizes the bench trial as “chaotic.” We do not think that is a fair
reading of the transcripts of the trial, but to the extent it was confusing, that was solely due to
plaintiff’s own obvious lack of understanding of how to question witnesses; or the difference
between facts, arguments, and opinions. We similarly note that plaintiff’s presentation of facts
in her brief grossly contravenes the requirement under MCR 7.212(C)(6) that the facts “must be
-3-
In any event, plaintiff testified that on April 23, 2015, the Hamburg Township Zoning
Administrator, Scott Pacheco, had approved “a land use permit application for a home occupation
permit” that had been submitted by Braidwood. Plaintiff met with Pacheco and wrote a letter to
him, protesting that Braidwood was seeking to use his home for purposes of his sealcoating
business, parking commercial vehicles, and using his propane tank for commercial purposes.
Plaintiff provided several letters sent by Pacheco. The first, dated May 27, 2015, was in response
to plaintiff; it agreed that storage of vehicles was not “home occupation,” but opined that parking
vehicles was not prohibited under the Township’s ordinances. The letter also promised to advise
Braidwood that the propane tank must be used only for residential purposes. Finally, the letter
apparently included an application form so that plaintiff could, if she wished, seek to have the
zoning ordinance amended to include regulations on parking and storage of commercial vehicles.
Plaintiff declined the latter invitation because she believed she did not need to.
On June 8, 2015, Pacheco sent a letter to Braidwood stating that he had been advised that
Braidwood was operating a commercial business on his property, including storage of materials
and fuel for the business operation and having employees pick up and drop off vehicles. Pacheco
warned that such commercial uses were not permitted, and he directed Braidwood to cease any
commercial activities immediately. On July 25, 2015, Pacheco wrote another letter to Braidwood
memorializing that he and the Township Supervisor had met with Braidwood and satisfied
themselves that Braidwood was not operating his business from the Braidwood Property, but rather
was permissibly parking his personally-owned commercial vehicles. That letter also memorialized
that Braidwood had erected an unpermitted accessory structure that Braidwood had pledged to
remove.5 Pacheco’s letter concluded that Braidwood was not in violation of Township regulations.
Plaintiff found Pacheco’s response unsatisfactory. She urged Pacheco to conduct a
personal inspection of the property at particular times when Braidwood was allegedly most
obviously engaging in commercial activities. According to plaintiff, Pacheco declined, relying
instead on Braidwood’s word, and Pacheco lied about inspecting the Braidwood Property. Plaintiff
admitted that she was not present when Pacheco visited the Braidwood property or spoke with
Braidwood, so she did not know what Pacheco observed on the Braidwood property or what
Braidwood might have told Pacheco. Plaintiff nevertheless disagreed with Pacheco’s
interpretation and application of the zoning ordinance, and she believed Pacheco had not actually
inspected the Braidwood Property because the violations she perceived to be occurring were “still
continuing.” Plaintiff further contended that Hamburg Township had created the allegedly illegal
conditions on the Braidwood Property by refusing to enforce the zoning ordinance, but admitted
that no one from the Township had physically participated in operating a commercial business or
placing commercial vehicles on the property.
Plaintiff testified that she performed online searches for Braidwood’s sealcoating business,
which indicated that he was, in fact, operating the business from the Braidwood Property. Plaintiff
fairly stated without argument or bias,” and it continues to reflect a failure to understand the
difference between facts, opinions, argument, and invective.
5
Plaintiff testified that she had not made any complaint about this accessory structure.
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testified that she had been to the Braidwood Property several times at Braidwood’s invitation and
had seen the propane tank, but she admitted she had not actually seen Braidwood dispensing
propane fuel into commercial vehicles. Plaintiff contended that Braidwood had natural gas to his
property, so the only reason for having a large propane tank must be for dispensing fuel for his
business. Plaintiff also testified that she had “hundreds of photographs” showing that Braidwood
was operating his business on his property.6 She also pointed out that she “sat behind him at the
intersection of Island Shore Drive and M-36 many times” and thus “saw the activity coming out
[of the Braidwood Property] on a regular basis.” Plaintiff concluded that Braidwood was therefore
engaging in a “nuisance trespass” and that she also therefore had proof that Hamburg Township
deliberately fails to enforce its ordinances on a selective basis.
Plaintiff was aware that she had a right to file an appeal with the zoning board of appeals
if she disagreed with the zoning administrator’s decision, but she did not do so because she
believed she did not need to. Plaintiff admitted that she was aware that Braidwood’s property was
in excess of six acres in size, and Hamburg Township had enacted an Ordinance 90-A that
permitted a certain number of commercial vehicles to be parked on property depending on the
acreage of that property. However, she contended that Ordinance 90-A was an impermissible
attempt to supersede the zoning ordinance, under which storage of vehicles was not permitted.
Plaintiff contended that she was not aware that the Michigan Zoning Enabling Act and the
Hamburg Township zoning ordinance granted discretion to the zoning administrator regarding
enforcement of the zoning ordinance. Plaintiff contended that she never sued Braidwood to abate
the conditions on his property because she wanted to compel the Township to “do their duty”
instead.
Hamburg Township Zoning Administrator Scott Pacheco, who was responsible for
enforcing the zoning ordinance as zoning administrator, testified that he had been a zoning
administrator and planner in various jurisdictions for a number of years. He testified that, contrary
to plaintiff’s belief, zoning administrators had discretion regarding enforcement of zoning
ordinances. However, he agreed that there was no discretion regarding enforcement of a nuisance
per se. He wrote his letter of May 27, 2015, after consulting with the township attorney and
concluding that merely parking a commercial vehicle on residential property was not a violation
of the zoning ordinance, so such parking did not require a home occupation permit. Pacheco
testified that the parking of Braidwood’s vehicles was considered incidental to his use of the
residential property because Braidwood was driving them back and forth between worksites.
Pacheco testified that when he inspected the Braidwood property, he observed a flatbed truck, a
trailer, a dump truck, a “small bobcat” and Braidwood’s “other truck which I imagine was the
sealcoat.” Pacheco opined that if Braidwood owned all of the vehicles, and if he was just using
them to get back and forth to his business, all of the vehicles would be considered incidental to the
primary use of a single-family dwelling under the zoning ordinance. Pacheco also opined that a
pole barn on Braidwood’s property was a permissible accessory structure and did not exceed any
applicable size limit.
6
On cross-examination, plaintiff clarified that she could see the Braidwood Property from her
own property, but she could not see Braidwood’s house or pole barn.
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Pacheco testified that he became involved in the instant matter when the township
supervisor, Pat Hohl, forwarded an email from plaintiff on April 10, 2015. Pacheco testified that
his normal process in response to such complaints was to visit the site and the contact the applicant.
Pacheco believed he received a home occupation application from Braidwood after he received
plaintiff’s email, and he visited the Braidwood Property shortly thereafter. He also visited the
property on other occasions regarding other code complaints. Pacheco testified that he forwarded
all information he obtained to plaintiff because she would call them to get the information anyway.
Pacheco opined that if Braidwood had been operating a construction yard, he would have
expected to see employees’ vehicles, construction materials, and waste and debris; he saw nothing
of the sort and instead believed “the property was very well kept.” Braidwood was present for all
of Pacheco’s visits. Pacheco conceded that the property could have been cleaned specifically in
anticipation of his visits, and he was never there in the morning; but because he saw no evidence
of a violation occurring, he did not believe there was a need to conduct a re-check at specific times.
Pacheco observed Braidwood’s propane tank, and he did not see the tank equipped with the kind
of spigot needed to dispense fuel into a vehicle. He did not observe the tank being used for
anything other than residential purposes, and he commented that the “propane tank looked like the
exact same type that I had growing up” in a rural area. Pacheco agreed that he sent a letter to
Braidwood directing him to stop any commercial activities, but he had not actually seen any
evidence of commercial activities. Pacheco denied knowing Braidwood personally, and no one at
the township attempted to suggest, threaten, or otherwise manipulate Pacheco into giving
Braidwood special treatment.
Pacheco opined that he complied with the requirement in the zoning ordinance that he must
inspect each alleged violation and order any discovered violation to be corrected. He clarified that
he had the discretion to give people a chance to correct violations before giving them citations,
analogous to a police officer having the discretion whether to give someone a ticket or a warning.
Pacheco noted that no one attempted to appeal his decisions to the zoning board of appeals.
Before the commencement of the instant action, the Township began to create an ordinance
that would regulate the parking and storage of commercial vehicles on residential properties,
because the existing ordinance offered no guidance on that issue. The ordinance was first enacted
and became effective on August 14, 2015. It was subsequently amended to correct some wording.
Pacheco testified that Ordinance 90-A, passed in 2017, allowed parking and storage of up to four
commercial vehicles on lots greater than five acres and that the Braidwood Property was over six
acres. Pacheco pointed out that there were other requirements, such as actually owning the
vehicles, and providing that the vehicles may only be used by the owner or occupant of the
property. The ordinance also allowed the vehicles to be driven to and from the property. Pacheco
testified that Braidwood stated that he was the owner of the vehicles on the Braidwood Property.
Pacheco opined that if a property was in violation to the extent of constituting a nuisance per se, it
was the property owner’s obligation to correct the condition, and even if the Township sought to
compel correction, it would need to obtain a court order first. Pacheco testified that he was not
permitted to take enforcement action against conditions that he could not determine, and he could
not enforce ordinances that did not exist. Pacheco believed that the word “may” in an ordinance
was permissive, and the word “shall” was mandatory.
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The trial court dismissed plaintiff’s complaint. It concluded that plaintiff failed to meet
her burden of proof to establish entitlement to a writ of mandamus. It determined that plaintiff
had a right to bring a civil action to abate a public nuisance arising out of violations of the zoning
ordinance, and she had a legal remedy in that she could have appealed the zoning administrator’s
decision to the zoning board of appeals. The trial court also noted that since the filing of the
complaint, Hamburg Township had adopted ordinance 90-A, which permitted Braidwood to park
up to four commercial vehicles on the Braidwood Property. Therefore, the trial court concluded,
plaintiff’s claims had been rendered moot since the filing of the complaint. The trial court
subsequently denied defendants’ motion for sanctions for frivolity. Plaintiff moved for relief from
judgment, which the trial court concluded it lacked jurisdiction to hear because plaintiff had
already filed an appeal in this Court.
II. STANDARDS OF REVIEW
Parties appearing in propria persona are entitled to more generosity and lenity in
construing their pleadings than would be lawyers; however, they are not excused from providing
support for their claims. Estelle v Gamble, 429 U.S. 97, 106-108; 97 S. Ct. 285; 50 L. Ed. 2d 251
(1976).
A trial court’s decision whether to grant a writ of mandamus is reviewed for an abuse of
discretion. Southfield Ed Ass’n v Bd of Ed of Southfield Pub Sch, 320 Mich. App. 353, 378; 909
NW2d 1 (2017). “An abuse of discretion occurs when the trial court ‘chooses an outcome that
falls outside the range of reasonable and principled outcomes.’ ” Id. (citation omitted). “[T]his
Court reviews de novo as questions of law whether a defendant has a clear legal duty to perform
and whether a plaintiff has a clear legal right to performance.” Barrow v City of Detroit Election
Comm, 301 Mich. App. 404, 411; 836 NW2d 498 (2013). The interpretation and application of
statutes, rules, and legal doctrines is reviewed de novo. Estes v Titus, 481 Mich. 573, 578-579; 751
NW2d 493 (2008). Likewise the interpretation of ordinances. Soupal v Shady View, Inc, 469
Mich. 458, 462; 672 NW2d 171 (2003).
This Court reviews for an abuse of discretion a trial court’s decision whether to award
attorney fees and determination of the reasonableness of those fees; reviews for clear error the trial
court’s underlying factual findings; and reviews de novo any underlying questions of law. Teran
v Rittley, 313 Mich. App. 197, 208; 882 NW2d 181 (2015). “A trial court’s finding that an action
is frivolous is reviewed for clear error.” Kitchen v Kitchen, 465 Mich. 654, 661; 641 NW2d 245
(2002). “A finding is clearly erroneous where, although there is evidence to support the finding,
the reviewing court on the entire record is left with the definite and firm conviction that a mistake
has been made.” Home-Owners Ins Co v Andriacchi, 320 Mich. App. 52, 75-76; 903 NW2d 197
(2017). In reviewing a trial court’s factual determinations, this Court defers to the trial court’s
superior ability to evaluate the credibility of witnesses who appeared before it. McGonegal v
McGonegal, 46 Mich. 66, 67; 8 N.W. 724 (1881); In re Loyd, 424 Mich. 514, 535; 384 NW2d 9
(1986); Anderson v City of Bessemer City, NC, 470 U.S. 564, 574-575; 105 S. Ct. 1504, 1511-1512;
84 L. Ed. 2d 518 (1985).
“We review the trial court’s findings of fact in a bench trial for clear error and conduct a
review de novo of the court’s conclusions of law.” Chapdelaine v Sochocki, 247 Mich. App. 167,
169; 635 NW2d 339 (2001). This Court reviews de novo whether and to what extent the law of
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the case applies. Kasben v Hoffman, 278 Mich. App. 466, 470; 751 NW2d 520 (2008). “Whether
a trial court followed an appellate court’s ruling on remand is a question of law that this Court
reviews de novo.” Schumacher v Dep’t of Natural Resources, 275 Mich. App. 121, 127; 737 NW2d
782 (2007). “In reviewing a motion to disqualify a judge, this Court reviews the trial court’s
findings of fact for an abuse of discretion and reviews the court’s application of those facts to the
relevant law de novo.” In re Contempt of Henry, 282 Mich. App. 656, 679; 765 NW2d 44 (2009).
III. WRIT OF MANDAMUS
Plaintiff first argues that the court abused its discretion when it entered a judgment of no
cause of action regarding her writ of mandamus complaint. We disagree.
A writ of mandamus is an extraordinary remedy that will only be issued if (1) the
party seeking the writ has a clear legal right to the performance of the duty sought
to be compelled, (2) the defendant has a clear legal duty to perform the act
requested, (3) the act is ministerial, that is, it does not involve discretion or
judgement, and (4) no other legal or equitable remedy exists that might achieve the
same result. The burden of proving entitlement to a writ of mandamus is on the
plaintiff. [Southfield Ed Ass’n, 320 Mich. App. at 378 (quotation marks and citations
omitted).]
As an initial matter, “[t]he general rule is that a writ of mandamus is not to be issued where the
plaintiff can appeal the error.” Keaton v Village of Beverly Hills, 202 Mich. App. 681, 683; 509
NW2d 544 (1993). As noted, one of the essential elements for a writ of mandamus to be issued is
the absence of any other legal or equitable remedy. Southfield Ed Ass’n, 320 Mich. App. at 378.
Plaintiff admitted that she could have appealed Pacheco’s decisions or sued Braidwood directly,
but she chose not to because she wanted to make the Township do so, apparently to prove a
political point. Thus, plaintiff cannot satisfy the requirements for issuance of a writ of mandamus.7
In any event, plaintiff’s argument is exceedingly difficult to follow, and she focuses far
more on irrelevant procedural concerns than substance, but she seemingly takes it as a given that
Braidwood is producing a nuisance per se on his property, and therefore, the Township was
obligated to act to abate it. Pacheco agreed with plaintiff that he was, in fact, obligated to inspect
alleged violations of the Hamburg Township zoning ordinance. Plaintiff’s argument seemingly
rests on the proposition that Pacheco was required to find a violation and agree with plaintiff’s
opinion about the nature of what was occurring on the Braidwood Property—much of which she
admitted in her testimony was speculation based on what she believed must be occurring. In effect,
she contends that the zoning administrator has no discretion to disagree with her conclusions, or
to conduct an inspection in a manner different from the way she wishes. Plaintiff’s extensive
history clearly shows that sometimes she is right, but also that she seemingly is incapable of
comprehending the possibility that she might, sometimes, also be wrong.
7
Furthermore, superintending control would also be unavailable where plaintiff had an appellate
option available to her. MCR 3.302(B) and (D)(2).
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Mandamus may only compel officials to perform duties to which there is a clear legal right
and no discretion. It has long been the case that where there is any doubt about the facts, or what
conclusions to draw from the facts, mandamus is inappropriate. Waterman-Waterbury Co v School
Dist No 4 of Cato Twp, 183 Mich. 168, 174-175; 150 N.W. 104 (1914). As noted, plaintiff disagrees
with Pacheco’s factual findings. That does not entitle plaintiff to dictate her version of the facts
to Pacheco. Mandamus might be proper to compel the bare performance of a discretionary act so
long as the writ does not seek to dictate how to exercise that discretion. See McMullen v Peterson,
300 Mich. 166, 168-169; 1 NW2d 494 (1942); Teasel v Dep’t of Mental Health, 419 Mich. 390,
410; 355 NW2d 75 (1984). Thus, plaintiff might be able to compel Pacheco to conduct an
investigation of an alleged zoning violation, had he declined to do so. That would still not entitle
her to dictate how to conduct that investigation, or what conclusions to draw from that
investigation. If the proper manner in which to carry out a duty is open to any reasonable doubt,
judgment, or interpretation, the duty cannot be considered ministerial. See Toan v McGinn, 271
Mich. 28, 34-36; 260 N.W. 108 (1935); Smeets v Genesee Co Clerk, 193 Mich. App. 628, 636; 484
NW2d 770 (1992).
Plaintiff has simply not provided us with any authority to the effect that there is a
mandatory way in which zoning administrators must conduct their inspections, or what
conclusions must be drawn from any particular observations made during those inspections. To
the contrary, enforcement of a municipal ordinance has been held to be discretionary. Randall v
Delta Charter Twp, 121 Mich. App. 26, 35; 328 NW2d 562 (1982). Plaintiff has also not provided
us with any authority establishing that Pacheco was obligated to share her beliefs about what was
or is occurring on the Braidwood Property. She has made it very clear that she seeks to establish
corruption in the Hamburg Township government, but she has actually established a willingness
to abuse or ignore legal processes based on her belief that she is entitled to dictate to the Hamburg
Township government how it should operate.8 Mandamus was properly denied.
IV. OPPORTUNITY TO BE HEARD AND LAW OF THE CASE
Plaintiff contends that the trial court violated this Court’s remand order and erred by failing
to hold a hearing. We disagree.
When this matter was previously before this Court, the part-dissent expressed a preference
for a narrower scope of remand than the remand granted by the lead and concurring opinions.
Specifically, the part-dissent would have remanded only for an evidentiary hearing into whether
plaintiff had been deprived of an opportunity to move for reconsideration. Insofar as we can
discern, plaintiff construes the part-dissent as imposing a binding requirement that the trial court
must have held an evidentiary hearing. Plaintiff fundamentally misreads the opinion and
misunderstands what constitutes the holding in a case with three separate opinions: only where a
majority of the judges or justices agree on a particular ground for a decision is that ground binding.
8
We note as well that in Docket Nos. 344321 and 344323, plaintiff attempted to submit to this
Court a clearly fabricated order regarding her pursuit of judicial disqualification. Lamkin v Twp
of Hamburg, unpublished order of the Court of Appeals, entered July 31, 2018 (Docket No.
344321); Lamkin v Twp of Hamburg, unpublished order of the Court of Appeals, entered July 31,
2018 (Docket No. 344323).
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Spectrum Health Hospitals v Farm Bureau Mut Ins Co of Michigan, 493 Mich. 503, 535; 821
NW2d 117 (2012).
“Under the law of the case doctrine, if an appellate court has passed on a legal question
and remanded the case for further proceedings, the legal questions thus determined by the appellate
court will not be differently determined on a subsequent appeal in the same case where the facts
remain materially the same.” Grievance Administrator v Lopatin, 462 Mich. 235, 259; 612 NW2d
120 (2000) (quotation marks and citation omitted). A majority of this Court held that plaintiff
must be given notice and an opportunity to be heard, and the trial court must create a reviewable
record, before the trial court could summarily dismiss plaintiff’s complaint. The trial court must
“comply strictly with the mandate of the appellate court” on remand. Schumacher 275 Mich. App.
at 128 (quotation marks and citation omitted). Plaintiff received a full trial on the merits of her
complaint, during which the trial court granted her far more leeway in her presentation than any
attorney would have received. Plaintiff received exactly what this Court required: notice, an
opportunity to be heard, and a reviewable record.
Plaintiff also argues that the law of the case doctrine somehow applies to her efforts to
disqualify the trial judge. Nowhere did this Court address judicial disqualification in our previous
opinion. Plaintiff also seemingly argues that the law of the case doctrine should have entitled her
to amend her pleadings under MCR 2.118(A)(2) and to “contest the legal premises underlying the
trial court’s summary disposition order.” Amendment under MCR 2.118 was only discussed by a
single judge, and it was in the context of permitting a response to a grant of summary disposition.
Again, plaintiff received a full trial. In any event, plaintiff also does not articulate what she would
add to an amended pleading, nor did she apparently move to amend in the trial court. See Lown v
JJ Eaton Place, 235 Mich. App. 721, 726; 598 NW2d 633 (1999). Furthermore, much of plaintiff’s
argument seemingly pertains to the propriety of the trial court’s 2015 summary disposition order.
Any such arguments are completely irrelevant and moot, because this Court vacated that order,
and, as discussed, plaintiff received a full trial. An issue is moot when “an event occurs that
renders it impossible for the reviewing court to grant relief.” CD Barnes Assoc, Inc v Star Heaven,
LLC, 300 Mich. App. 389, 406; 834 NW2d 878 (2013). We are therefore unpersuaded that the trial
court erred or failed to comply with this Court’s directives on remand.
V. JUDICIAL DISQUALIFICATION
Next, plaintiff argues that the trial court erred when he denied her motion to disqualify the
trial court judge because of “impropriety and the appearance of impropriety.” We disagree.
MCR 2.002(C)(1)(a) provides that a judge may be disqualified when the judge is “biased
or prejudiced against a party or attorney.” Disqualification of a judge is also warranted when,
“[t]he judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual
bias impacting the due process rights of a party as enunciated in Caperton v Massey, [556 U.S. 868];
129 S. Ct. 2252; 173 L. Ed. 2d 1208 (2009), or (ii) has failed to adhere to the appearance of
impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.” MCR
2.003(C)(1)(b).
Generally, a trial judge is not disqualified absent a showing of actual bias or
prejudice. The mere fact that a judge ruled against a litigant, even if the rulings are
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later determined to be erroneous, is not sufficient to require disqualification or
reassignment. Judicial rulings, in and of themselves, almost never constitute a valid
basis for a motion alleging bias, unless the judicial opinion displays a deep-seated
favoritism or antagonism that would make fair judgment impossible and overcomes
a heavy presumption of judicial impartiality. [In re Contempt of Henry, 282 Mich.
at 680 (quotation marks and citations omitted).]
Disqualification under the Due Process Clause is only required “in the most extreme cases.” In re
MKK, 286 Mich. App. 546, 567; 781 NW2d 132 (2009) (quotation marks and citation omitted).
Due process principles require disqualification, absent a showing of actual bias or
prejudice, “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,” such as situations when the judge has a pecuniary interest in the
outcome, has been the target of personal abuse or criticism from a party, is
enmeshed in other matters involving a party, or has previously participated in the
case as an accuser, investigator, fact-finder, or initial decisionmaker. [Id. (citation
omitted).]
Plaintiff, without identifying any specific acts or providing citations to the record, argues that “the
trial court,” presumably but not clearly referring to Judge Hatty, engaged in “a malicious act of
premeditated tampering and interference with [her] right to due process.”9 Plaintiff also argues
that the trial court was partial because it “orchestrated and implemented a malicious premediate
directive that prevented [her] from actually accessing the judicial system.” It is readily apparent
from plaintiff’s brief that she feels very strongly about this, but we are unable to discern any facts
or coherent argument in support of this proposition, nor do we comprehend her efforts at explaining
why Judge Hatty should have been interested in expending the energy on such a conspiracy. We
are therefore unable to entertain it. Estelle, 429 U.S. at 106-108; Mitcham v City of Detroit, 355
Mich. 182, 203; 94 NW2d 388 (1959).
Below, plaintiff argued that Judge Hatty was prejudiced against her based on his prior
rulings against her and the “threatening” statements made during a May 18, 2017 status
conference, which appear to have been related to a separate action. Plaintiff also appears to refer
to Judge Hatty’s 2015 summary disposition order granting summary disposition in favor of
defendants, which was vacated by this Court, to support her argument that the judge was biased.
However, “[t]he mere fact that a judge ruled against a litigant, even if the rulings are later
determined to be erroneous, is not sufficient to require disqualification or reassignment.” In re
Contempt of Henry, 282 Mich. at 680. Further, “a trial judge’s remarks made during trial, which
are critical of or hostile to counsel, the parties, or their cases, ordinarily do not establish
disqualifying bias.” In re MKK, 286 Mich. App. at 567.
9
It appears that plaintiff is not focusing on the motion for disqualification of Chief Judge
Reader, although she appears to take issue with the decisions of all the judges involved in the
Judge Hatty disqualification determination.
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Plaintiff also argues that the trial court perpetrated a “fraud on the court.” Plaintiff provides
several non-binding cases10 in an effort to define what that term means. We deduce that, in
essence, plaintiff contends that the trial judge was corrupt, lacked impartiality, or otherwise failed
to perform judicial duties in an honest manner. See Alexander v Robertson, 882 F2d 421, 425-426
(CA 9, 1989); Bulloch v United States, 763 F2d 1115, 1121-1122 (CA 10, 1985); Kenner v CIR,
387 F2d 689, 691-692 (CA 7, 1968). Those cases require a high burden of proof to sustain such a
claim. Plaintiff’s basis for asserting a “fraud on the court” is, apparently, the trial court’s denial
of her motion for reconsideration. As with the binding authority in Michigan regarding judicial
disqualification, it is not enough for a trial court to make an error, if indeed the trial court did err.11
Plaintiff provides no evidence that the trial court denied her motion for corrupt or dishonest
reasons. Thus, even if we were to accept her “fraud on the court” authority at face value, she has
not established any basis for overturning the proceedings.
Plaintiff failed to establish that Judge Hatty was biased or prejudiced against her under
MCR 2.003(C)(1)(a), or that he appeared to be prejudiced under MCR 2.003(C)(1)(b). Plaintiff
also failed to establish that Judge Hatty’s actions were reflective of a high probability of bias
requiring disqualification based on due-process concerns. As we have noted, we have carefully
reviewed the transcripts of the trial, and we are impressed by the care and patience with which
Judge Hatty conducted the proceedings despite plaintiff’s efforts to present argument at
inappropriate times and occasional contentiousness. Again, Judge Hatty granted plaintiff
considerably more leeway than any attorney could possibly have had reason to expect, and he
tolerated conduct that might well have resulted in an attorney being held in contempt. Plaintiff
simply draws conclusions about Judge Hatty’s probable motives based on what reads more like a
combination of paranoia, intolerance for anyone disagreeing with her, and inability to comprehend
the possibility that she might, occasionally, be wrong. Accordingly, plaintiff’s motion for
disqualification was properly denied.
VI. ORDINANCE 90-A
Plaintiff also challenges the trial court’s reliance on Ordinance 90-A. Plaintiff’s argument
is that Ordinance 90-A is “actually void on its face,” because it is a general ordinance that cannot
take precedence over a zoning ordinance. Plaintiff relies on Addison Twp v Gout, 435 Mich. 809;
460 NW2d 215 (1990). In that case, under statutes in place at the time, our Supreme Court held
that the former Township Rural Zoning Act conferred upon municipalities broad authority to
regulate land use, subject to a specific exception that the Court construed narrowly. Id. at 813-
816. We find nothing in that case setting forth a hierarchy of townships’ “general” and “zoning”
ordinances, and we find no other authority provided by plaintiff establishing any such hierarchy.
10
Decisions of lower federal courts and other state courts may have persuasive value, but they
are not binding. Holland v Trinity Health Care Corp, 287 Mich. App. 524, 529 nn 2, 4; 791
NW2d 724 (2010).
11
It is not clear to which motion for reconsideration she refers. As noted, to the extent plaintiff
continues to make much of what occurred in 2015, any such events or non-events are moot.
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However, we have found some authority establishing that there is a distinction between a
regulatory ordinance and a zoning ordinance; and concluding that an ordinance regulating the
parking or storage of vehicles other than on public streets and sidewalks is substantively a zoning
ordinance. Recreational Vehicle United Citizens Ass’n v City of Sterling Heights, 165 Mich. App.
130, 136; 418 NW2d 702 (1987). This Court held that if an ordinance is, in substance, a zoning
ordinance, it must be passed in accordance with applicable statutes governing enactment of zoning
ordinances. Courts look to the substance of matters, rather than their labels. Wilcox v Moore, 354
Mich. 499, 504; 93 NW2d 288 (1958). Thus, irrespective of whether it is called a zoning ordinance
or a general ordinance, if Ordinance 90-A was not enacted in the manner of a zoning ordinance, it
may be challengeable as invalid.12 However, plaintiff fails to appreciate that we must presume an
ordinance to be valid in the absence of evidence to the contrary, and plaintiff would have the
burden of timely showing that the ordinance was improperly enacted. See Bengston v Delta Co,
266 Mich. App. 612, 263-264; 703 NW2d 122 (2005). Plaintiff may have a point, but she has
provided no authority or evidence proving it.
In any event, the trial court did not rely on Ordinance 90-A for the conclusion that plaintiff
was not entitled to a writ of mandamus, which it had already correctly determined. Rather, the
trial court relied on Ordinance 90-A for the conclusion that plaintiff’s challenge to Braidwood
parking commercial vehicles on the Braidwood Property was moot. The trial court’s ruling was
apparently correct under Ordinance 90-A as it stands, and as noted, it was not the trial court’s or
defendants’ obligation to prove Ordinance 90-A valid. Furthermore, even if Ordinance 90-A is,
hypothetically, subject to challenge for having been improperly enacted, 13 we question whether
plaintiff could have standing to challenge Ordinance 90-A unless she seeks to personally exceed
its restriction on the number of vehicles that she could park on her own property. Plaintiff has, in
any event, failed to establish that Ordinance 90-A must have been improperly enacted, or that
calling it a “general” ordinance precludes it from having effect even if it substantively operates as
a zoning ordinance.
VII. MISCELLANY
Plaintiff seemingly believes the trial court committed a number of other material
misstatements, misrepresentations, or misapplications of the law not already discussed. However,
to the extent she does not identify those mistakes or explain why they are erroneous, we will not
search for them on her behalf. Estelle, 429 U.S. at 106-108; Mitcham, 355 Mich. at 203.
Plaintiff argues that “an egregious and absolutely false statement” made by the trial court
was that plaintiff had requested a hearing on a request for order to show cause. Apparently,
plaintiff believes this is false because of the trial court’s 2015 dismissal, and because the trial court
did not hold an evidentiary hearing. However, as discussed, whatever did or did not happen in
2015 is irrelevant and moot. Also as discussed, this Court did not, in fact, order the trial court to
hold an evidentiary hearing. In any event, what the trial court actually held was that “[t]he request
12
We expressly do not decide this; we only note that it might be possible.
13
To be clear, we have no knowledge of whether it was enacted pursuant to an incorrect
procedure, and we infer from plaintiff’s brief that she also does not have such knowledge.
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for order to show cause is moot as we had the hearing as requested by the, by the plaintiff.” One
might, in an exercise of sheer pettifoggery, challenge whether a “trial” is exactly the same thing as
a “hearing,” but in substance, the trial court was correct that the trial gave plaintiff her opportunity
to be heard.
VIII. SANCTIONS
Defendants argue that the trial court erred when it denied their motion for sanctions. In
January 2019, defendants filed a motion for sanctions under MCR 1.109(E)(5), (6), and (7),
claiming the complaint was not well-grounded in fact or warranted by existing law, and under
MCR 2.625(A)(2) and MCL 600.2591, claiming that plaintiff had pursued a frivolous action. The
trial court denied the motion without articulating a basis for its decision. We decline to consider
the merits of this claim, because when a trial court fails to articulate a clear basis for its decision
regarding sanctions, it is impossible for this court “to ascertain whether the trial court clearly erred”
and that this Court must “vacate that portion of the order and remand for appropriate findings.”
Home-Owners Ins Co, 320 Mich. App. at 79. Because the trial court did not articulate its basis for
denying sanctions, we are constrained to vacate the trial court’s order denying sanctions, remand
for appropriate findings, and instruct the trial court to articulate its findings that serve as the basis
for its ruling. We emphasize that the trial court is not obligated to grant or deny sanctions on
remand, but only to articulate its reasoning on the record.
IX. CONCLUSION
In Docket No. 347064, we affirm the trial court’s order granting a judgment of no cause of
action in favor of defendants. In Docket No. 347064, defendants, being the prevailing parties, may
tax costs. MCR 7.219(A). In Docket No. 347744, we vacate the trial court’s order denying
defendants’ motion for sanctions and remand for articulation on the record of the trial court’s
reasoning. In Docket No. 347744, the parties shall bear their own costs. MCR 7.219(A). Strictly
for the sake of expediency, we retain jurisdiction.
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
/s/ Amy Ronayne Krause
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Court of Appeals, State of Michigan
ORDER
Kathleen Jansen
Mary Ann Lamkin v Hamburg Township Board of Trustees Presiding Judge
Docket No. 347744 Karen M. Fort Hood
LC No. 15-028656-CZ Amy Ronayne Krause
Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 28 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded. As stated
in the accompanying opinion, the trial court’s order denying defendants’ motion for sanctions is vacated
and this matter is remanded for articulation on the record of the trial court’s reasoning. The proceedings
on remand are limited to this issue.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within
seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days after
completion of the proceedings.
/s/ Kathleen Jansen
Presiding Judge
November 19, 2020