People v. Dycus , 70 Mich. App. 734 ( 1976 )

70 Mich. App. 734 (1976) 246 N.W.2d 362

PEOPLE
v.
DYCUS

Docket No. 26030.

Michigan Court of Appeals.

Decided August 24, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney Research, Training and Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

Poole, Klask & Carty, P.C., for defendant.

Before: QUINN, P.J., and D.F. WALSH and A.M. BACH,^[*] JJ.

QUINN, P.J.

Defendant was charged with possession of phencyclidine, MCLA 335.341(4)(b); MSA 18.1070(41)(4)(b). As the result of plea bargaining, defendant pleaded guilty to an added count of unlawful use of the same drug, MCLA 335.341(5)(b); MSA 18.1070(41)(5)(b). The sentence was one year probation. At the plea proceeding, defendant moved orally to disqualify the judge because of his relationship to the prosecuting attorney. This motion was denied.

Defendant's application for delayed appeal was granted. The only issue presented is whether the trial judge was disqualified under GCR 1963, 405.1(4) because he was admittedly within the fourth degree of consanguinity to the prosecuting attorney who neither appeared nor participated personally in the proceedings. No claim of bias or prejudice on the part of the judge because of his relationship to the prosecuting attorney is raised.

The disqualification in the rule relied on relates to hearing an action. Action is defined as, "a legal proceeding by which one demands or enforces one's right in a court of justice", Webster's Third New International Dictionary. A plea proceeding is a process by which a judge determines whether a defendant's admission of guilt is a valid admission of guilt to the crime to which defendant is pleading. The plea proceeding is not an action within the meaning of the rule relied on by defendant.

The specific sub-section of the rule that defendant relies on is a disqualification of a judge related within the fifth degree of consanguinity or affinity to "any of the attorneys or counselors for any party". Unless the prosecuting attorney appears personally and participates in the action, he is not the attorney or counselor for any party.

The purpose of the disqualification rule relied on by defendant is to remove any taint, or suspected taint, of bias or prejudice on the part of a judge arising from his relationship to the attorney for any party. Here, not only is no bias or prejudice arising from the admitted relationship shown, none is claimed.

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.