H.

By letter dated October 11, 2011, Judge Edwards in obvious reference to the results of his ex parte discussions with Mr. Scales stated that [i]t has come to my attention that recent Monitor meetings have not been as constructive as I would expect. Thus, it is also clear that Mr. Scales has improperly offered, and the Court improperly permitted Mr. Scales to provide, his personal opinion concerning responsibility for the status of construction and the efficacy of the Court-ordered meetings with Mr. Scales. I. The impermissible ex parte communications and testimony by Mr. Scales, and Judge Edwards being provided with information and other evidence outside the presence of the parties, is improper and has pervasively intruded on the province of the Court as a finder of fact. At a minimum, the conduct creates an appearance of impropriety. 4. Disqualification is warranted pursuant to MCR 2.003(C)(1)(b); and (C)(1)(g). Disqualification is warranted pursuant to MCR 2.003(C)(1)(b) for the reason that Judge Edwards, based on objective and reasonable perceptions, has both (i) a serious risk of actual bias impacting DIBCs due process rights as enunciated in Caperton v Massey, 556 US 898, 129 S Ct 2252 (2009), and (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct. In particular, the circumstances in this case are such that experience teaches that the probability of actual bias on the part of Judge Edwards is too high to be constitutionally tolerable. Further, Prentis Edwardss son, Prentis Edwards, Jr., is known by Judge Edwards to have more than a de minimis interest that could be substantially affected by the proceedings. The grounds for disqualification pursuant to MCR 2.003(C)(1)(b) and MCR 2.003(C)(1)(g) are as follows:

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A. On June 6, 2011, four days after a meeting between Judge Edwards and Monitor Scales, Mr. Scales requested a private meeting with Reginald Turner, counsel for DIBC, for later that day. Mr. Turner met with Monitor Scales on June 6, 2011, commencing approximately 5:00 pm. at the Book Cadillac Hotel in Detroit, Michigan. Monitor Scales started the meeting by advising Mr. Turner that he would, if called upon, deny any of what he was about to tell Mr. Turner. Monitor Scales then advised Mr. Turner, as counsel for DIBC, that DIBC would not win its pending Motion for Relief from Judgment arising from the false testimony of Victor Judnic (the Motion for Relief from Judgment was in fact denied by Judge Edwards eleven days later, the expected entry of which Order Mr. Scales must have learned at his June 2, 2011, meeting with Judge Edwards), and that Judge Edwards would not force MDOT to accept alternative proposals from DIBC. Mr. Scales further advised Mr. Turner that MDOT would never agree to any proposal from DIBC unless DIBC first withdrew its opposition to Governor Snyders proposed New International Bridge Crossing bridge (the NITC Bridge), formerly known as the Detroit River International Crossing bridge. Monitor Scales further advised Mr. Turner that if DIBC withdrew its opposition to Governor Snyders proposed NITC Bridge, DIBC would be afforded the opportunity to run the anticipated duty-free store at the Governors new bridge. Mr. Turner left that meeting very troubled, and believed that Monitor Scales had been sent to convey to DIBC that it had no choice but to withdraw its opposition to Governor Snyders proposed NITC Bridge if DIBC wanted any relief in this case from Judge Edwards or cooperation from MDOT. Monitor Scales, who is an

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attorney, would have known that Mr. Turner was required to convey that message to his client, DIBC. The nature of the threat was unambiguous, and can be attributed to Judge Edwards since Mr. Scales serves as the Courts Monitor. Three days later, and without any intervening meeting with the parties, Mr. Scales again met with Judge Edwards, the clear implication of which is that he was reporting the results of Mr. Scaless meeting with Mr. Turner. B. Within several days of the retention of Reginald Turner, as counsel for DIBC in this matter, Judge Prentis Edwardss son, Prentis Edwards, Jr., approached Mr. Turner (who knew Prentis Edwards, Jr. socially), and told him that he (Prentis Edwards, Jr.) was interested in having Governor Rick Snyder appoint him (Prentis Edwards, Jr.) to the Wayne County Circuit Court. C. Several vacant positions thereafter became available on the 36th District Court, subject to appointment by Governor Snyder; the appointment of Prentis Edwards, Jr. to the 36th District Court would allow him to run as an incumbent for that position in 2012, or to run for his fathers position on the Wayne County Circuit Court following his fathers retirement in 2012. D. Governor Snyder has been a steadfast proponent and supporter of the proposed NITC Bridge. DIBC has been a steadfast opponent of the NITC Bridge. E. Prentis Edwards, Jr. thereafter applied for consideration by Governor Snyder as an appointee to the 36th District Court. F. Judge Edwards had an interest in having his son, Prentis Edwards, Jr., appointed to the 36th District Court, and Prentis Edwards, Jr. has more than a de minimis interest in the 36th District Court appointment.

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G. While Judge Edwards had an interest in having his son, Prentis Edwards, Jr. appointed to the 36th District Court, and Prentis Edwards, Jr. has more than a de minimis interest in the 36th District Court appointment by Governor Snyder, Judge Edwards continued to preside over a case between DIBC, who opposed the competing NITC Bridge, and the Michigan Department of Transportation who, under the control and at the direction of Governor Snyder, was the leading proponent of the NITC Bridge. H. MDOT, through Victor Judnic, itself acknowledged that Governor Snyder is among those persons within the definition of MDOT leadership, responsible for the review, internally, of any proposed construction changes (including changes to the contract and the design) to the Gateway Project. See Exhibit C, Testimony of Victor Judnic, Tr. October 3, 2011, at pp. 92-94. I. Mr. Judnic also admitted that the Governors office has shown some interest in this project because its a very high profile project. See Exhibit D, Testimony of Victor Judnic, Tr. October 4, 2011, at p. 64. J. Thus, decisions by Judge Edwards adverse to DIBC in the present case would inure to the benefit of Governor Snyders efforts to construct the NITC Bridge. K. Under those circumstances, Judge Edwardss subjective bias is not relevant, and DIBC is not obligated nor will it seek to establish that Judge Edwards is in fact actually biased or lacks impartiality. The average judge in Judge Edwardss position, seeking and/or supporting his namesakes appointment to the bench by the very person (Governor Snyder) who has publicly expressed antagonism for DIBC and its opposition to the NITC Bridge, and is responsible for the conduct of

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MDOT, an adverse party to DIBC, could not reasonably be expected to be neutral, and thus there is and remains an unconstitutional potential for bias. L. In fact, while Judge Edwardss sons application for appointment by Governor Snyder to the 36th District Court remained under consideration, the possibility of temptation led Judge Edwards not to hold the balance nice, clear and true between the State of Michigan and DIBC, resulting in a denial of due process to DIBC. M. The absence of an appearance of impartiality cast a dark cloud over a number of decisions by Judge Edwards made while his son, Prentis Edwards, Jr., sought appointment by Governor Snyder of Prentis Edwards, Jr. to the 36th District Court: (1) the ex parte issuance of an Order to Show Cause why DIBC should not be held in contempt, (2) the enforcement, under threat of contempt, of an interlocutory grant of partial summary disposition, and the included grant of specific performance, (3) the incarceration of Dan Stamper, the President of DIBC, without due process, (4) the issuance of a second Order to Show Cause despite the time for performance under the Courts earlier sanctions order not yet having expired, and (5) ordering the conveyance of property by DIBC to MDOT, despite MDOTs unequivocal admission that such conveyances were not necessary for the purpose ordered by the Court. N. On November 3, 2011, one day later, Judge Prentis Edwards held DIBC in contempt despite the time for performance under the Courts earlier Orders not having yet expired, and ordered DIBC to immediately take various steps in the interim, including: (i) making the necessary changes to Piers 11, 12 and 13 of

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S01 to conform to the C-1 drawing,; (ii) relocate Pier 19; and (iii) relocate a private truck road that does not conflict with the Agreed Design. O. Judge Edwardss Order further compels non-party Manuel J. Moroun, who had not appeared in the proceedings, to appear in Court at the time and date set for the imposition of sanctions against DIBC by reason of DIBCs alleged contempt of Court. P. Following entry of the November 3, 2011, Contempt Order, Governor Snyder announced his decision to appoint Prentis Edwards, Jr. to the 36th District Court. Q. Governor Snyders press secretary on November 23, 2011, did not completely deny that Judge Prentis Edwards had contacted Governor Snyder concerning the appointment of Prentis Edwards, Jr., but was quoted as stating only that Judge Prentis Edwards had not contacted the administration to her knowledge. See Exhibit F. R. On November 28, 2011, Governor Snyders spokeswoman publicly

acknowledged the even larger disagreement between Snyder and the Moroun family construction of a second span to Canada. S. Judge Edwardss child, Prentis Edwards Jr, is known by Judge Edwards to have had more than a de minimis interest that could be substantially affected by this proceeding, including the appointment to a $140,000.00 judicial post that would enable Prentis Edwards, Jr. to run as an incumbent in 2012. 5. Disqualification is warranted pursuant to MCR 2.003(C)(1)(a) and (b); and (C)(1)(g). Disqualification is warranted pursuant to MCR 2.003(C)(1)(a) and (b) and (C)(1)(g) for the reason that Judge Edwards, based on objective and reasonable perceptions, (i) is biased or

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