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Yarcheski v. Department of Health & Human Services

Superior Court of Maine, Cumberland

September 28, 2018

BERNADETTE K. YARCHESKI and THOMAS J. YARCHESKI, Petitioners/Appellants
v.
DEPARTMENT OF HEALTH & HUMAN SERVICES, Respondent/Appellee

          RESPONDENT'S ATTORNEYS: KEVIN BEAL, AAG, HALLIDAY MONCURE, AAG

          ORDER ON PENDING MOTIONS

          A. M. Horton, Justice.

         These three cases brought by Petitioners Bernadette and Thomas Yarcheski present appeals from administrative agency action pursuant to M.R. Civ. P. 80C. The cases are now before the court in connection with the Respondent Department of Health & Human Services' Motion to Consolidate and to Dismiss Three Petitions and for Sanctions Against Petitioner Thomas J. Yarcheski. Also pending is Petitioners' Motion for Justice Horton to Recuse.

         The Petitioners have not filed any opposition to the Respondents' Motion to Dismiss, meaning that they have waived objection. See M.R. Civ. P. 7(c)(3). Nonetheless, the court has an independent duty to review the Motion and decide whether dismissal is appropriate.

         The Respondent has filed an opposition to the Motion for recusal.

          The court elects to decide the motions without oral argument. See M.R. Civ. P. 7(b)(7), 80C(l) (oral argument to be scheduled "[if]nless the court otherwise directs." See also Lindemann v. Comm'n on Governmental Ethics & Election Practices, 2008 ME 187, ¶26, 961 A.2d 538 (Rule 80C permits court to direct that oral argument not be scheduled).

         Logically, the Motion for recusal needs to be addressed before the Motion to Dismiss is addressed.

         1. The Motion to Recuse

         The standard governing a judge's recusal is set forth in Rule 2.11 of the Maine Code of Judicial Conduct. The Rule requires a judge to recuse in a proceeding when the judge's impartiality might reasonably be questioned, and it enumerates, without limitation, some of the circumstances in which recusal is warranted.

         However, the Supreme Judicial Court of Maine has made it clear that a judge is not only obligated to recuse when recusal is called for, but also obligated not to recuse when recusal is not called for. See In re Michael M., 2000 ME 204, ¶ ¶10-15, 761 A.2d 865 (trial court abused its discretion by recusing without adequate reason; order of recusal vacated). This means that a judge cannot take the path of least resistance and recuse simply because a party calls on the judge to recuse. Instead, the judge must examine the asserted grounds for the motion to recuse and decide whether they justify recusal.

         The Petitioners' Motion recites five separate grounds for recusal. None of them relates to these cases; all of them relate to three cases previously filed by Petitioner Thomas Yarcheski. See Yarcheski v. Department of Health and Human Services, Me. Super. Ct, Cum. Cty., Docket Nos. PORSC-AP-17-050, -AP-17-051, -AP-18-003 (consolidated). All five grounds appear to rest on claims of judicial bias, which Rule 2.11 specifically designates as a circumstance calling for recusal. See Me. Code. Of Jud. Conduct 2.11 (recusal is called for when" [t]he judge has a personal bias or prejudice concerning a party or the party's lawyer").

         The first ground alleges that the court wrongfully consolidated the three previous cases. In his three previous case, Petitioner Thomas Yarcheski filed a motion to recuse on the same ground. The motion was denied because the decision to consolidate was appropriate and could not reasonably be viewed as reflecting any bias. That remains the case, so this ground does not justify recusal.

         Next, the Motion asserts as the second and third grounds that the court failed to take action in response to two incidents of wrongdoing by the Respondents' attorney-failure to serve a filing and a mischaracterization of the record evidence. However, the Petitioner has not established any wrongdoing by Respondents' attorney that warranted action by the court. These two grounds also do not warrant recusal.

         The fourth ground for recusal in Petitioner's Motion asserts that the court has developed "bogus charges to attack" Petitioner Thomas Yarcheski, and specifically that the court has "clearly implied that Petitioner Thomas ...


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