BERNADETTE K. YARCHESKI and THOMAS J. YARCHESKI, Petitioners/Appellants
DEPARTMENT OF HEALTH & HUMAN SERVICES, Respondent/Appellee
RESPONDENT'S ATTORNEYS: KEVIN BEAL, AAG, HALLIDAY
ORDER ON PENDING MOTIONS
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.
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.
Respondent has filed an opposition to the Motion for recusal.
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).
the Motion for recusal needs to be addressed before the
Motion to Dismiss is addressed.
The Motion to Recuse
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.
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.
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
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.
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.
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