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12/10/75 WAYNE COUNTY PROSECUTOR v. RECORDER'S

December 10, 1975

WAYNE COUNTY PROSECUTOR
v.
RECORDER'S COURT JUDGE



Appeal from Wayne, Joseph A. Sullivan, J.

Danhof, P. J., and Quinn and R. B. Burns, JJ.

SYLLABUS BY THE COURT

Appeal and Error -- Courts -- Superintending Control -- Judges -- Court Rules.

A recorder's court Judge has no standing to appeal an order of superintending control which directs him to bind two persons over for trial because the Judge is only a nominal defendant in the action for superintending control and is not an "aggrieved party" who may appeal pursuant to court rule (GCR 1963, 806.1).

The opinion of the court was delivered by: Per Curiam

Complaint by the Wayne County Prosecuting Attorney against Clarence Laster, Jr., Recorder's Court Judge, for an order of superintending control directing defendant to bind two persons over for trial. The order of superintending control was issued. Judge Laster appeals.

At the Conclusion of the preliminary examination on the charge of possession of heroin in the Recorder's Court, Judge Clarence Laster, Jr., Recorder's Court Judge, acting in his capacity as a magistrate, dismissed the case against Frank and Ruth Ann Russo. Judge Laster had determined that a previously issued search warrant was defective and that, therefore, probable cause did not exist to bind the Russos over for trial. The Wayne County Prosecutor's office filed a complaint for superintending control in the Wayne County Circuit Court pursuant to Gray v Recorder's Court Judges, 51 Mich App 386; 215 NW2d 198 (1974), People v Paille # 1, 383 Mich 605; 178 NW2d 469 (1970), Wayne County Prosecuting Attorney v Recorder's Judge, 27 Mich App 419; 183 NW2d 577 (1970), and People v Cason, 387 Mich 586; 198 NW2d 292 (1972). On March 6, 1975, the Wayne County Circuit Court issued an order of superintending control ordering that the Recorder's Court Magistrate, Judge Laster, bind Frank and Ruth Ann Russo over for trial on the charges contained in the complaint and warrant that had been previously filed. Judge Laster has filed a claim of appeal in this Court from the order of the Wayne County Circuit Court. The Plaintiff, the People of the State of Michigan, now asks this Court to dismiss the appeal for lack of jurisdiction raising two issues, one of which is dispositive of this matter.

Is a Judge, who was the nominal defendant in the circuit court, an aggrieved party before this Court, pursuant to GCR 1963, 806.1, who has standing to appeal an order of superintending control issued by the circuit court? The answer is no and plaintiff's motion to dismiss is granted.

This Court had a similar, but not identical situation, before this Court in Pollard v Berrien Circuit Judge, 42 Mich App 308; 201 NW2d 646 (1972). The "aggrieved party" question in Pollard, supra, involved an original proceeding of superintending control filed in this Court by a district Judge complaining of various actions taken by a circuit Judge. In Pollard, supra, this Court stated that the parties, both Judges, had no real interest in the controversy. The spectre of a Judge entering the adversary arena to challenge adverse orders of another Judge was specifically and emphatically disapproved.

While Pollard, supra, involved an original proceeding filed with this Court, the philosophy and reasoning behind Pollard, supra, are equally applicable to the instant appeal. GCR 1963, 806.1 provides that an aggrieved party has a right to appeal from all final judgments and final orders of a circuit court. In the instant case, the Recorder's Court Judge, acting as a magistrate, cannot claim any interest or right of the Judge that is aggrieved. The Judge is neither the winner nor the loser but must remain impartial in theory and in fact. This Court concludes that the defendant Judge is not an "aggrieved party" pursuant to GCR 1963, 806.1, and, therefore, has no right to file or maintain this appeal. Appeal dismissed for lack of jurisdiction.

19751210

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