Wednesday, February 23, 2011

Judge refuses to recuse self in child custody case (Bad Axe, Michigan)

This kind of case happens more often than not. This kind of judicial bias is very difficult to fight, and in a perfect world, judges would avoid even the appearance of bias by simply recusing themselves voluntarily. Frankly, Judge M. Richard Knoblock should do the right thing and pull himself out. Then maybe the merits of this case will be decided on the facts, rather than the possibility that Judge is peeved because he didn't get a pay raise.

Knoblock won’t recuse self from Kim Damrow case
Published: Wednesday, February 23, 2011 10:51 AM EST
By Kate Hessling
Tribune Staff Writer

BAD AXE — Kim Damrow and her attorney made it clear Tuesday they will appeal Huron County Circuit Court Judge M. Richard Knoblock on Tuesday denial of a motion to disqualify himself from Damrow’s custody case.

And the State Court Administrator’s Office, which is the administrative office of the Michigan Supreme Court, already has been contacted by the county circuit court office to request a judge to oversee a second hearing for a motion to disqualify Knoblock from the case, which involves Damrow’s ex-husband, Dustin J. Noworyta, seeking parenting time of their 4-year-old son, Boden.

Though the case is between Damrow and Noworyta, Damrow seeks to disqualify the judge because she claims he is biased against her because she is married to 84th District State Rep. Kurt E. Damrow.

In her opening statement during Tuesday’s motion hearing, Kim Damrow’s attorney, Nicole Saady, of Grosse Pointe, outlined a number of reasons for disqualification. She noted those reasons do not have to prove an actual bias exists — just that the facts and evidence would lead a reasonable person to believe the judge may be tempted to be partial.

What followed were hours of testimony during Tuesday’s hearing regarding the motion to dismiss Knoblock from the case, which is based on two claims: 1.) Knoblock is biased against Kim Damrow because Kurt Damrow instigated an investigation into a Huron County Friend of the Court (FOC) employee and attempted to create a Community Advisory Council to mediate grievances between the public and the FOC; and 2.) Kurt Damrow, while serving on the Huron County Board of Commissioners, denied the judge’s request to raise the pay of the circuit court administrator.

Saady, on behalf of the plaintiff, Kim Damrow, also argued Knoblock showed prejudice by predetermining the results of child’s mental health exam when he said, during a prior hearing, that Kim Damrow is poisoning the child’s mind.

Knoblock said he still feels that she is poisoning the child’s mind, however, it’s not a determination — it’s an observation he made, and he subsequently ordered the child be evaluated, as it was clear from the child’s pediatrician that the child was suffering from severe anxiety.

Saady argued the court, during more than one occasion, has been told the defendant has not turned over requested mental health records. In doing so, it showed the appearance of bias when Knoblock made the statements predetermining Kim Damrow’s guilt without having looked at Noworyta’s mental health records, she said.

Noworyta’s attorney, Duane Cubitt, of Bad Axe, said both Noworyta and Kim Damrow previously underwent psychological evaluations, and the evaluator looked at Noworyta’s mental health records prior to making her opinion. That opinion stated there is no reason why his client should not be allowed parenting time, Cubitt said.

After being separated from his child from quite some time, Noworyta filed a motion seeking visitation that he’s entitled to by law, Cubitt said. The court then set up visitations to reacquaint the child with his father, which were for a few hours and were supervised by Kim Damrow. After some time, the visitations were without Kim Damrow, but supervised by Noworyta’s grandmother or mother. Then the supervisions became longer and eventually included alternating weekends, Cubitt said.

“I have a hard time (seeing) how Mrs. Damrow believes she has been treated unfairly,” he said, noting there’s no proof in the court record that Noworyta is an unfit parent.

He said he has offered to release Noworyta’s records to the plaintiff, so long as legal counsel signs a protective order. Without that, he said, he fears Kim Damrow would post the records on Facebook.

Discrepancy in recollections of pay issue

The plaintiff’s assertions that Knoblock is biased against Kim Damrow because of a pay issue stems back from when Kurt Damrow served as commissioner. Knoblock, along with Huron County District Court Judge David B. Herrington and Huron County Probate Court Judge David L. Clabuesch, had objected to a wage study that proposed having discrepancies between the way the court administrators are paid.

Prior to the new wage study, the administrators were paid equally. Per the study, the district administrator would be paid the most, followed by the probate administrator and then the circuit court administrator.

According to testimony from Damrow and former Huron County Commissioner Jim Leonard, who previously chaired the Personnel Committee, the judges met with the committee to discuss their concerns and then left the room to allow the committee to discuss the matter privately.

Leonard said the committee decided to adhere to the study’s recommendations, as the county spent a large amount of money on the wage study and wanted to follow its recommendations. The committee recommended its decision to the full board of commissioners for approval, and the full board voted to adopt the system.

The vote was followed by a letter, signed by all three judges, that opens with Knoblock stating he was shocked and appalled by the vote because he was lead to believe the wages for the three court administrators would be equal. That is because of a conversation he said he had with Kurt Damrow and Clabuesch in his chambers following the Personnel Committee meeting, where Kurt Damrow said something along the lines of “everything is taken care of” and the salaries would be adjusted.

But, during Tuesday’s hearing, Kurt Damrow denied stating anything of the sort. He also denied ever meeting with Clabuesch in Knoblock’s chambers.

Though he did not testify Tuesday, Clabuesch told the Tribune earlier this month that there was, in essence, an agreement, and the agreement didn’t carry through, for whatever reason.

“I was certainly there for part of it (the meeting in Knoblock’s chambers), because I remember (Kurt Damrow) stuck his head in after the meeting and said, “It’s all taken care of,’” Clabuesch previously told the Tribune.

Knoblock referred to the above discussion in his chambers and, reminding Damrow that he is under oath, Knoblock flat out asked whether Damrow remembered saying something along the lines of “everything’s taken care of” to Clabuesch and himself.

Damrow replied that he isn’t saying he didn’t say it, he just doesn’t remember stating those words.

Kurt Damrow testifies about attempt to create CAC

During his testimony, Kurt Damrow said in his two years on the board, he never saw a reaction from his commissioner counterparts like he did the day he proposed entertaining the idea to create a Community Advisory Council (CAC), which would mediate grievances between the public and Huron County FOC.

“Everyone seemed scared,” Kurt Damrow said, as he explained the group was silenced by David Peruski, who was the board chairman at the time and said the discussion would have to wait until Knoblock could join the discussion.

Kurt Damrow said it is a common practice for judges and department heads to attend meetings, but this seemed different because this was not to the point where a department head or judge would join the discussion.

Huron County Commissioner Steve Vaughan testified about that meeting, noting the chair did stop the meeting to have the judge called into the room before any further discussion was held.

He said while it’s not unusual for department heads to join the board, they usually have a request to make of the board. In this instance, the board didn’t know what Knoblock’s part of the discussion would be. As a result, the board was quiet and tentatively waiting.

When asked whether he was scared, Vaughan said the board members were all curious as to how the d iscussion would go.

“I wasn’t scared,” Vaughan said, adding he was inquisitive of why the judge had to be there before any other discussion could be held.

During that discussion, according to testimony and court records, Knoblock said he was neither for or against the creation of a CAC, however, he believed it would be a waste of money.

Saady claimed it would take some authority and power from the judge, who currently is the one to review grievances from Friend of the Court.

Knoblock countered that a CAC would have no ultimate authority — just the power to review and make recommendations — and the ultimate decision still would stay with him.

Cubitt argued because the judge was neither for or against the creation of the CAC, it does not make him biased that Kurt Damrow proposed the idea. He said it takes a majority of the board to create the committee, and no vote was ever taken to do so.

Kim Damrow takes the stand

During Kim Damrow’s testimony, there were a variety of questions and issues that were addressed during prior hearings, particularly the plaintiff’s assertion the defendant has a history of physical and emotional abuse, is unstable and is a threat to the child’s safety.

When asked whether Kim Damrow believes Noworyta has changed his circumstances in any way since the visitation has been expanded, she said, “not at all.”

Cubitt countered that this is all past evidence, and there’s no requirement stating circumstances have to change in order to change parenting time.

Saady disagreed, and countered that if there are mental health records missing, it puts the child in danger and is not in the best interest of the child.

She then asked Kim Damrow whether she feels she was treated fairly throughout the court proceeds, and Kim Damrow said she does not. She then asked whether the judge has treated the defendant fairly, and Kim Damrow answered, “I think he’s gone above and beyond.”

Knoblock denies plaintiff’s motion

Regarding the court administrator pay issue, Knoblock said he has disagreed with county commissioners before, but that has nothing to do with what he does in court, as he has a responsibility to be fair and just.

In his ruling, Knoblock explained Kurt Damrow’s Friend of the Court grievance and issues with Eric Goebel, of Friend of the Court, are red-herring issues involving the plaintiff’s husband.

In regard to the grievance, Knoblock questioned why Kurt Damrow’s interest didn’t crop up until after his wife’s case. He said when Kurt Damrow filed a grievance on behalf of his wife, he was notified he has no business doing so because it’s ethically improper to make factual assertions about an open case. When that happened, Kurt Damrow attempted to form a CAC and held a protest because he’s dissatisfied with the court’s decisions.

But the proper procedures were followed, and just decisions were made, Knoblock said. Sometimes, parties are not satisfied with a ruling and they attack the judge and/or attack the court system. But people can’t do those things to make a judge look prejudiced, he said.

He said this is his 33rd year on the circuit court bench and when he walks in, he’s not himself — he’s in a special spot that’s immune from prejudice and favoritism.

“That’s what I do — what I’ve done in this case,” he said, noting there’s absolutely no reason to remove himself from the case, and that’s why he’s denying the motion.

Another factor Knoblock noted had led to his decision is the motion to disqualify him from the case is not timely, as it has to be made within 14 days.

Knoblock said he is allowed to request the state assign a new judge to oversee a new hearing to consider a motion for Knoblock’s dismissal. Saady said her client will proceed with this appeal.

Knoblock still will oversee the case until a hearing is held by an assigned judge. If the judge sides with the plaintiff and grants the motion for dismissal, then Knoblock no longer will oversee the case. If the assigned judge agrees with Knoblock’s decision, Knoblock will remain on the case.