2017-10-08 / Front Page

No go

Judge denies motion to recuse himself from cases
810-452-2609 • adietderich@mihomepaper.com

LAPEER — A Metamora-based attorney is calling for an investigation of Lapeer County Circuit Court Judge Byron Konschuh by the Michigan Judicial Tenure Commission as a result of a recent ruling by the longtime elected official.

John Miller, former chief assistant prosecuting attorney, Lapeer County — now in private practice — filed a motion “for recusal of judge and automatic reassignment” for any matters Miller deals with that are set to appear before Konschuh.

Konschuh filed a defamation lawsuit on May 15 against Miller — along with John Biscoe, controller/administrator, Lapeer County, Tim Turkelson, former prosecuting attorney, Lapeer County, Dana Miller, treasurer, Lapeer County, Cailin Wilson, another former assistant prosecutor, and the citizens of Lapeer County. In the nine-count suit, Konschuh seeks more than $100,000 in damages.

The defendants filed a counter-suit in July. The case is in the discovery phase and not expected to go to trial until next summer.

The legal battle relates to a multi-year ordeal that included felony charges filed against Konschuh (and later dismissed with prejudice) regarding certain monies he received and spent while serving as Lapeer County prosecutor.

In light of the pending lawsuit/counter-suit, John Miller filed his recusal motion on Aug. 31 in Lapeer County Circuit Court.

Among other things, it claims that Konschuh “has without question abused his position as a circuit court judge by denying motions to recuse and stay proceedings requested by” Miller.

Further, the motion claims that Konschuh “has an absolute obligation to recuse himself in light of the fact he has made derogatory statements about (Miller) since (Konschuh) was charged criminally with felony embezzlement charges back in 2014.”

In 2013, the Lapeer County Prosecuting Attorney’s Office received a few checks from a bad check recovery vendor and then-Prosecutor Turkelson was asked where the checks should be deposited. (Turkelson had recently been appointed prosecutor, following the appointment of Konschuh to the bench seat formerly occupied by Judge Michael Higgins.)

Turkelson said the checks should be deposited where they always had been, only to learn that meant personal accounts controlled by Konschuh.

Turkelson and John Miller presented the matter to Biscoe in October 2013. The three decided the situation called for a third-party investigation, ultimately conducted by Michigan State Police.

A special prosecutor from Shiawassee County — Deana Finnegan — was appointed by the Michigan Attorney General to oversee the case for the state.

In July 2014, and after the MSP investigation, Finnegan brought five felony counts of embezzlement by a public official of more than $50 against Konschuh.

During an October 2014 hearing, an MSP investigator testified more than 40 checks totaling $1,802 were deposited during the 2009-2013 period into personal checking accounts controlled by Konschuh while he served as Lapeer County Prosecuting Attorney.

The court proceedings in that case led to an agreement.

A “stipulation and agreement between the parties,” which was accepted by Circuit Court Judge Geoffrey Neithercut on March 8, 2016, read “… the parties agree that Judge Konschuh will plead ‘no contest’, that there may be an interpretation of MCL 21.44 that supports the argument that he should have reported the collection of these funds to the State or other appropriate entity for accounting purposes.”

Following a short delay of sentence, the felony charges were dismissed with prejudice and Konschuh returned to the bench in April 2016.

Konschuh’s suit filed May 15 this year originally included six counts: malicious prosecution, abuse of process, invasion of privacy, libel/ slander, tortious interference with contractual relations, and gross negligence.

Through an amended complaint filed in June, three more counts were added: alleged violations of Konschuh’s First Amendment and Fourth Amendment rights, along with a “class of one equal protection violation,” which generally pertains to a situation where an individual within a group is intentionally treated different from the others in the group without rational basis. Konschuh’s attorney has consistently said it’s about clearing his client’s name.

In his Aug. 31 recusal motion, Miller claims Konschuh has engaged in defaming him for years.

Among other things, the motion claims Konschuh “in concert with his Facebook supporters (whose names are omitted but can be produced), targeted (John Miller) and his wife Dana Miller, on the ‘Judge Byron Konschuh’ Facebook page with venomous character attacks blaming the Millers and other officials for the felony criminal embezzlement charges levied against Konschuh as well as accusing the Millers of an absurd conspiracy because of Dana Miller’s elected position as County Treasurer at the time that (John Miller) was chief assistant prosecuting attorney.”

The motion goes on to claim that Konschuh has “effectively demonstrated his prejudice toward Millers and lack of concern for the due process rights” among other things.

In a filing supporting his motion, Miller further states that “Konschuh continues to verbalize his disdain toward me and has done so to members of local law enforcement… Konschuh continues to blame me for the legal bills he incurred in dodging criminal charges for taking 43 checks payable to the Prosecutors Office and taking funds received for reimbursement of Assistant Prosecutors time on Lapeer County payroll.”

In ruling on the motion, Konschuh, however, disagreed with Miller’s claims and denied it.

Konschuh took Miller to task on various aspects of the motion, starting with a question raised about the legal authority for the procedure to be brought before the court. Konschuh also raised other questions about the motion, including why a motion was even filed instead of a complaint.

In a transcript of the hearing obtained by The County Press, Konschuh also raised the question of how many cases Miller has pending before him. Miller said he doesn’t have any currently.

The judge then went on to remind Miller of the Michigan Rules of Professional Conduct Regarding Pretrial Publicity.

Konschuh specifically cited rule 3.6 that “indicates a lawyer who is participating or who has participating in the investigation or litigation of a matter shall not make an extrajudicial statement the lawyer knowns or reasonably should know that will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative… proceeding in the matter.”

Further, Konschuh raised the issue of whether or not the motion was frivolous. During the hearing, he defined frivolous as “one of the following conditions is met: the party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party. The party had no reasonable basis to believe that the facts underlying the party’s legal action were true in fact. And the party’s legal position was devoid of legal argument or merit.”

Before denying the motion, Konschuh said “based up the fact that there’s simply a motion; no brief, no complaint or answer, no cause of action, no case in controversy; nothing here in which the court cans exercise an opinion that might give rise to the appears of impropriety it’s certainly premature, moot, no one has any standing and it’s certainly frivolous so you may take an order denying your request and you can request a transcript or whatever you need if you intend to appeal,” Konschuh said.

“Yeah, we will, I will request a copy of the transcript. This will be appealed,” Miller responded.

Miller told The County Press he will appeal all the way to the Michigan Supreme Court if need be. He said he already has filed a complaint with the Michigan Judicial Tenure Commission, and planned to appeal the ruling to Lapeer County Circuit Court Chief Judge Nick Holowka.

“Konschuh has a simple black and white issue before him and refuses to recuse himself from my cases because he thinks he is untouchable and above the law,” Miller said. “Konschuh created this conflict by filing a frivolous lawsuit against my wife and I … and now he denies the obvious conflict to once again further his personal agenda and abuse his position as a judge.

“By denying my motion to recuse, Konschuh has demonstrated his incompetence as a judge along with his willingness to exact personal political revenge in spite of his judicial oath (obviously hypocritical) to uphold the integrity of the judiciary, and the canons of avoiding impropriety and impartiality,” Miller said. “I will not be intimidated by his sociopathic agenda.”

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