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Berry v APCOA 16.13

Section 33

APPEALS, Referee bias

CITE AS: Berry v APCOA, No. 104859 (Mich App March 15, 1989).

Appeal pending: No

Claimant: Nizar M. Berry

Employer: APCOA, Inc.

Docket No: B86 01519 RM1 103536W

COURT OF APPEALS HOLDING: A referee need not be disqualified merely because he has worked with a party's attorney in the past.

FACTS: Claimant was observed leaving work before the end of his shift on four separate occasions in an eight-day period. Claimant's time cards were stamped to falsely indicate that he left work later than observed. Claimant contended that he went home for lunch and returned later to punch out, but his testimony was contradicted by observations of employer's witnesses which the referee found more credible. Claimant also asserted that he was engaged in surveillance work for employer, but presented no credible testimony in this regard. During the hearing claimant's attorney moved to disqualify the Referee because the Referee had worked with the employer's attorney in the past. The Referee declined to disqualify himself. The Referee found the claimant disqualified for misconduct. In a petition for rehearing the claimant's attorney again raised the Referee disqualification issue and also alleged the employer's attorney and Referee spoke to each other after the hearing for ten minutes.

DECISION: Claimant was disqualified for misconduct. The Referee was not required to disqualify himself from deciding the appeal.

RATIONALE: While actual bias or prejudice need not be shown, allegations of bias must be supported by facts. "A hearing before an unbiased and impartial decisionmaker is a basic tenant of due process. ... Actual bias or prejudice is not required to be shown. Where the situation is one which 'experience teaches that the probability of actual bias on the part of a decisionmaker is too high to be constitutionally tolerable,' then a decisionmaker must be disqualified. City of Livonia v DSS, 423 Mich 466, 509; 378 NW2d 402 (1985), citing Withrow v Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975). In Crampton, supra, p 351 our Supreme Court stated: Among the situations identified by the [Withrow] Court as presenting that risk are where the judge or decisionmaker (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. We find that the present claim does not fall within any of the above circumstances."


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