1.5Remedies Available for Violations of the CVRA
Where a crime victim’s rights under the CVRA are violated, he or she may file a writ of mandamus against nonjudicial officers, an action for superintending control of a lower court, and/or a judicial grievance action.
A.Writ of Mandamus Action Against Nonjudicial Officer
A brief discussion of mandamus actions is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 8.
A writ of mandamus directs a public official to perform his or her legal duty. Jones v Dep’t of Corrections, 468 Mich 646, 658 (2003). “Mandamus will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner.” Teasel v Dep’t of Mental Health, 419 Mich 390, 410 (1984).
“[A] writ of mandamus is an extraordinary remedy and will only be issued where: (1) the party seeking the writ has a clear legal right to performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result.” Citizens Protecting Michigan’s Constitution v Sec’y of State, 280 Mich App 273, 284 (2008). See Smith v Crime Victims Comp Bd, 130 Mich App 625, 628 (1983) (finding writ of mandamus was improper where the victim could apply for leave to appeal the denial of her application for crime victim’s compensation from the Crime Victim’s Compensation Board);
The party seeking mandamus has the burden of proving all four requirements. See Rental Props Owners Ass’n of Kent Co v Kent Co Treasurer, 308 Mich App 498, 518-519 (2014); Coalition for a Safer Detroit v Detroit City Clerk, 295 Mich App 362, 367 (2012).
“Unless the constitution, a statute, or court rule requires an action for mandamus against a state officer to be brought in the Supreme Court, the action must be brought in the Court of Appeals or the Court of Claims. . . . All other actions for mandamus must be brought in the circuit court unless a statute or rule requires or allows the action to be brought in another court.” MCR 3.305(A)(1)-(2).
A brief discussion of actions for superintending control is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 8.
An order of superintending control enforces the supervisory power of a court over lower courts or tribunals. MCR 3.302(A).
Superintending control is an extraordinary remedy. In re Gosnell, 234 Mich App 326, 341 (1999). Availability of an appeal or another remedy will defeat a writ of superintending control. MCR 3.302(B), (D)(2); Choe v Flint Charter Twp, 240 Mich App 662, 667 (2000). But see In re Hague, 412 Mich 532, 546 (1982) (if an appeal is available, but not adequate, then superintending control is not precluded).
The action for superintending control is proper to determine if the lower court failed to perform a clear duty. Gosnell, 234 Mich App at 341. “[S]uperintending control is not to be used to review an alleged abuse of discretion.” In re Wayne Co Prosecutor, 192 Mich App 677, 679-680 (1991).
If a party does not have standing to appeal, superintending control may be a proper remedy. Michigan State Police v 33rd Dist Court, 138 Mich App 390, 394 (1984).
A judge may be subject to disciplinary proceedings for misconduct in office. See MCR 9.202(B). Misconduct in office may include:
•persistent incompetence or neglect in timeliness; persistent failure to treat persons fairly, with courtesy and respect; unfair or discourteous treatment of a person because of a protected characteristic; misuse of judicial office for advantage or gain; failure to cooperate with a reasonable request from the JTC in its investigation, MCR 9.202(B)(1);
•violation of the Code of Judicial Conduct or the Michigan Rules of Professional Conduct either before or after becoming a judge or being related to judicial office, MCR 9.202(B)(2); and
•disregarding statutes and court rules, In re Del Rio, 400 Mich 665, 695 (1977).