Davenport v. Ingham Circuit Judges ( 1972 )

Lesinski, C. J.

Plaintiff is charged with felonious assault. MCLA 750.82; MSA 28.277. He was bound over to Ingham County Circuit Court for trial. The case was assigned by lot to Judge Sam Street Hughes as provided by GCR 1963, 925.5(1). Plaintiff was arraigned before Judge Hughes and pleaded not guilty. Shortly thereafter, counsel for plaintiff was notified that the case had been reassigned to Judge Jack W. Warren for the reason that Judge Warren was, at that time, handling a previous case involving a separate criminal charge against the plaintiff.

Plaintiff filed objections to the reassignment, claiming that such action did not comply with the provisions of GCR 1963, 925.5(1). Judge Hughes overruled plaintiff’s objection and ordered the reassignment of the case to Judge Warren. Plaintiff seeks an order of superintending control directing the trial court to refrain from reassigning the case from Judge Hughes to Judge Warren.

GCR 1963, 925.5 governs the assignment of cases in multijudge courts. Subparagraph 925.5(1) provides in pertinent part:

"(1) Each civil action shall be assigned to one of the judges of the circuit at the time of its commencement. Such assignment shall be made by lot and in such manner as to result, as nearly as possible, in each judge of the circuit receiving an equal number of actions from each of the following classifications: automobile negligence, domestic relations, and other general civil. Criminal actions may be assigned in the same manner as civil actions, or may be brought before the presiding judge for arraignment. If brought before the presiding judge and a plea of guilty is entered, the presiding judge shall retain the action; and if a plea of not guilty is enteredthe presiding judge shall forthwith assign the action by lot to one of the judges of the circuit. ” (Emphasis supplied.)

Clearly, the reassignment of plaintiff’s case in the manner described above does not comply with the provisions of GCR 1963, 925.5(1) which require that, except in pleas of guilty, criminal cases shall be assigned by lot to one of the judges of the circuit.

In his written opinion overruling plaintiff’s objections, Judge Hughes recognizes that GCR 1963, 925.5(1) governs the assignment of criminal cases in the absence of a local rule. He states, however, that the Ingham County Circuit Court has had an "oral-local court rule” since about January 1, 1963, which obviates the necessity of assignments of criminal cases to the judges of the circuit by lot. Judge Hughes states in his opinion:

"Local practice has been that a defendant who is before a judge on a criminal matter and is assigned to another judge on a separate criminal matter, his second case, is reassigned to the original judge, so that both cases are before the same judge.”

"Oral-local” court rules are neither provided for nor permitted by any provision of the General Court Rules. Obviously, the "oral-local” court rule which is referred to by Judge Hughes in his opinion is nothing more than a local practice which has been informally adopted and followed by the judges of the circuit. Clearly, such local practice does not have sufficient stature to circumvent the provisions of GCR 1963, 925.5(1), quoted above. That rule applies in all judicial circuits except where it has been replaced by a local court rule which has been approved by the Supreme Court. In this respect, GCR 1963, 925.5(5) relates to the above-quoted subrule and provides:

"(5) This rule shall be inoperative as to any judicial circuit at such time as it shall be replaced by a local rule of that circuit which has been approved by the Supreme Court.”

The Ingham County Circuit Court has not adopted or promulgated any local rule replacing GCR 1963, 925.5(1) and no such local rule has been approved by the Supreme Court. It is therefore apparent that, as of this time, the General Court Rule is still controlling in Ingham County Circuit Court. It is further apparent that the practice in Ingham County Circuit Court under the so-called "oral-local” court rule is in conflict with GCR 1963, 925.5(1).

The people’s case against plaintiff was improperly reassigned to Judge Warren. The order of superintending control is granted. It is ordered that the Ingham County Circuit Court refrain from assigning plaintiff’s case from Judge Hughes to Judge Warren or, in the event that the case has already been assigned to Judge Warren, that it be reassigned to Judge Hughes.

Levin, J., concurred.