378 P.2d 977 | Nev. | 1963
By the Court,
This is an original proceeding in certiorari which tests the jurisdiction of the respondent judge of the respondent district court to make sundry orders on arraignment of the petitioner in a criminal proceeding against him in said court, over the objections of petitioner, on the ground that the respondent judge, Honorable George Marshall, was the father of Edward G. Marshall, district attorney of Clark County, attorney for the State of Nevada.
We hold that the respondent judge was disqualified under the provisions of our applicable statute, and that the proceedings had and the orders made at petitioner’s arraignment were null and void.
On January 16, 1963, petitioner, represented by attorney Michael J. Wendell, appeared before District Judge George Marshall for a criminal arraignment. Edward G. Marshall, the son of Judge Marshall, appeared for the state as district attorney. Wendell advised petitioner to stand mute and objected to any proceedings conducted in the matter by Judge Marshall on the ground that he was disqualified by law from acting in any matter in which his son represented a party.
Petitioner’s objection was overruled. Judge Marshall directed that a plea of not guilty be entered for the
The governing section is NRS 1.230, subsections 2 (d), 7, and 8, reading as follows:
“2. A judge shall not act as such in any action or proceeding when implied bias exists in any of the following respects:
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“(d) When he is related to an attorney or counselor for either of the parties by consanguinity or affinity within the third degree.
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“7. This section shall not apply to- the arrangement of the calendar or the regulation of the order of business.
“8. Paragraph (d) of subsection 2 shall not apply to the presentation of ex parte or uncontested matters, except in fixing fees for attorneys related within the degree of consanguinity or affinity therein specified.”
That the actions of a district judge, disqualified by statute, are not voidable merely, but void, has long been the rule in this state. Frevert v. Swift, 19 Nev. 363, 11 P. 273, decided in 1886.
In support of the jurisdiction of the judge to preside at the arraignment and make the orders complained of, respondents cite many cases dealing with disqualification of judges under statutes disqualifying a judge because of relationship to a party, or because of relationship to a person interested in the proceedings. We need not deal with cases under such statutes.
No disqualification existed under the common law by reason of the judge’s relationship to an attorney. Frevert v. Swift, supra.
Annotation 11 A. L. R. 1325, 1328, deals with the statutes of the few states that disqualify for relationship to the attorney, and refers, among other cases, to People v. Ebey, 6 Cal.App. 769, 93 P. 379, 381. Except for one point hereinafter discussed, that case is on all
Respondents however call attention to the fact that the California statute under which Ebey was decided did not contain the provisions of subsection 8 above quoted to the effect that the disqualification “shall not
The foregoing also answers the contention of the respondents that the arraignment was not a contested matter. Objection was made to all orders of the court, except the order appointing counsel.
It was further said in the Ebey case: “A sound policy seems to demand that, independent of the rights of the parties to the action, the judicial tribunals appointed by law to administer justice should be preserved from discredit by a broad and liberal construction of the statute to the end of securing a judgment untainted with bias or interest. Courts should be slow to discover subtle and refined distinctions for indulging a doubtful jurisdiction where the liberty of a citizen is at stake.”
For a full discussion of the subject “Relation to attorney as disqualifying judge,” see Annot., 50 A.L.R.2d 143.
Respondents also contend that the disqualifying statute does not apply to district attorneys in criminal cases. However, no authorities in point are cited, and we must reject the contention.
As under the statute quoted, the respondent judge was disqualified from presiding at the petitioner’s arraignment and as his orders at the arraignment were accordingly void, the same are hereby vacated.