doc How to Sue a Judge

Judicial Immunity Is NOT Absolute!Also see article on How To Sue A Judge and always remember, case law is ALWAYS changing.

Here is a selection of case/reference citations regarding judicial immunity when personally suing a Judge for money damages, from the collection of former Phoenix, AZ Attorney Robert A. Hirschfeld, JD. (Warning: Look up and read the cited case for consistency with your situation, before citing it in your own brief.)

When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost. Rankin v. Howard, (1980) 633 F.2d 844, cert den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326.

In Rankin v. Howard, 633 F.2d 844 (1980) the Ninth Circuit Court of Appeals reversed an Arizona District Court dismissal based upon absolute judicial immunity, finding that both necessary immunity prongs were absent; later, in Ashelman v. Pope, 793 F.2d 1072 (1986), the Ninth Circuit, en banc , criticized the "judicial nature" analysis it had published in Rankin as unnecessarily restrictive. But Rankin's ultimate result was not changed, because Judge Howard had been independently divested of absolute judicial immunity by his complete lack of jurisdiction.

Some Defendants urge that any act "of a judicial nature" entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum, (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. Stump v. Sparkman, id., 435 U.S. 349.

"Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction." Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)

A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts. Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938)

Generally, judges are immune from suit for judicial acts within or in excess of their jurisdiction even if those acts have been done maliciously or corruptly; the only exception being for acts done in the clear absence of all jurisdiction. Gregory v. Thompson, 500 F2d 59 (C.A. Ariz. 1974)

There is a general rule that a ministerial officer who acts wrongfully, although in good faith, is nevertheless liable in a civil action and cannot claim the immunity of the sovereign. Cooper v. O'Conner, 99 F.2d 133

When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction requisites he may be held civilly liable for abuse of process even though his act involved a decision made in good faith, that he had jurisdiction. State use of Little v. U.S. Fidelity & Guaranty Co., 217 Miss. 576, 64 So. 2d 697.

"... the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument." Marbury v. Madison, 1 Cranch 137 (1803).

"No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it betond these boundaries is nothing less than lawless violence." Ableman v. Booth, 21 Howard 506 (1859).

"The courts are not bound by an officer's interpretation of the law under which he presumes to act." Hoffsomer v. Hayes, 92 Okla 32, 227 F 417.

> Journal: Cato Journal Vol 8, No. 1 - 1988> Author : Bruce Benson> Title : An Institutional Explanation for Corruption of Criminal Justice Officals

> Journal: Cato Journal, Vol. 7, No. 2, 1987> Author : Robert Craig Waters> Title : Judicial Immunity versus Due Process: When Should a Judge Be Subject to Suit?

Justice Field in Bradley v. Fisher. (13 Wall) 353 (1871) stated: "...judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction."

"The doctrine of judicial immunity originated in early seventeenth-century England in the jurisprudence of Sir Edward Coke. In two decisions, Floyd & Barker and the Case of the Marshalsea, Lord Coke laid the foundation for the doctrine of judicial immunity." Floyd & Barker, 77 Eng. Rep. 1305 (1607; The Case of the Marshalsea, 77 Eng. Rep. 1027 (1612) were both cases right out of the Star Chamber.

Coke's reasoning for judicial immunity was presented in four public policy grounds:1. Finality of judgment;2. Maintenance of judicial independence;3. Freedom from continual calumniations; and,4. Respect and confidence in the judiciary.

The Marshalsea presents a case where Coke denied a judge immunity for presiding over a case in assumpsit. Assumpsit is a common-law action for recovery of damages for breach of contract. Coke then explained the operation of jurisdiction requirement for immunity:

. "[W]hen a Court has (a) jurisdiction of the cause, and proceeds iverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court, no action lies against them. But (b) when the Court has not jurisdiction of the cause, there the whole proceeding is [before a person who is not a judge], and actions will lie against them without any regard of the precept or process..."

Although narrowing the availability of judicial immunity, especially in courts of limited jurisdiction, Coke suggested that there was a presumption of jurisdiction and that the judge must have been aware that jurisdiction was lacking.

Thus, questions of personam, rem and res jurisdiction are always a proper issue before the court to obviate the defense that the court had no way to know they lacked jurisdiction.

"Stump v Sparkman Revisited" continues to show it was Chief Justice Kent (circa 1810) that was instrumental in establishing the "doctrine" of JI in America, in Yates v. Lansing, 5 Johns 282. Thereafter Justice incorporated the "doctrine" in two cases: Randall v. Brigham, 74 U.S. (7 Wall.) 523, and Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). Both Yates and Randall dealt with officers of the court.

"The belief that Bradley narrowed the scope of the doctrine respresents a serious misunderstanding of the decision. First, Bradley provides no authority for the belief that a judge of general jurisdiction may be liable for acts taken in absence of subject matter jurisdiction. The distinction between excess of jurisdiction and absence of jurisdiction in the opinion is simply explanatory. Because a court of general jurisdiction has jurisdiction over all causes of action, a judge of such a court will always be immune for his judicial acts, even if he exceeds his authority. See Bradley, 80 U.S. at 351-52."

CASE NOTE: "Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants civil rights; Robert Craig Waters. Tort & Insurance Law Journal, Spr. 1986 21 n3, p509-516"

A Superior Court Judge is broadly vested with "general jurisdiction." Evidently, this means that even if a case involving a particular attorney is not assigned to him, he may reach out into the hallway, having his deputy use "excessive force" to haul the attorney into the courtroom for chastisement or even incarceration. Mireles v. Waco, 112 S.Ct. 286 at 288 (1991). Arguably, anything goes, in a Superior Court Judge's exercise of his "general

jurisdiction", with the judge enjoying "absolute judicial immunity" against tort consequences. Provide he is not divested of all jurisdiction.

A Judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity. Forrester v. White, 484 U.S. at 227-229, 108 S.Ct. at 544-545; Stump v. Sparkman, 435 U.S. at 380, 98 S.Ct. at 1106. Mireles v. Waco, 112 S.Ct. 286 at 288 (1991).

Administrative-capacity torts by a judge do not involve the "performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights," and therefore do not have the judicial immunity of judicial acts. See: Forrester v. White, 484 U.S. 219, 98 L.Ed.2d 555, 108 S.Ct. 538 (1988); Atkinson-Baker & Assoc. v. Kolts, 7 F.3d 1452 at 1454, (9th Cir. 1993). A Judge as a State Actor is not vested with the sovereign immunity granted to the State itself . See: Rolfe v. State of Arizona, 578 F.Supp. 987 (D.C. Ariz. 1983); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, (9th Cir, 1981) cert. granted Kush v. Rutledge, 458 U.S. 1120, 102 S.Ct. 3508,73 L.Ed.2d 1382, affirmed 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d. 413, appeal after remand 859 F.2d 732, Ziegler v. Kirschner, 781 P.2d 54, 162 Ariz. 77 (Ariz. App., 1989).

It is said that absolute judicial immunity is favored as public policy, so that judges may fearlessly, and safe from retribution, adjudicate matters before them. True. But equally important, is the public expectation that judicial authority will only be wielded by those lawfully vested with such authority.

The history of Arizona's admission to the Union reveals at least one reason why historic public policy in Arizona would favor ARCP Rule 42(f)(1)'s complete and expeditious divestiture of jurisdiction, and its concurrent divestiture of absolute judicial immunity in the event a renegade judge persists in wielding the tools of his office after having been affirmatively stripped of them.

In 1912, the U.S. Congress refused to admit Arizona to the Union for the stated reason that Arizona's proposed Constitution provided the public with a mechanism for removing sitting judges from office. Joint Res. No. 8, 8/21/11, 37 U.S. Stat. 39, cited in Vol. 1, Ariz. Rev. Stats., p.130. To facilitate admission to the Union, the judge-removal mechanism was excised from the State Constitution, allowing Arizona to become a State on 2/14/12. Soon afterward, on 11/5/12, Arizona voters restored the mechanism by amendment. Ariz. Constitution, Art. VIII "Removal from Office", section 1; A.R.S. Vol. 1, p. 178. So strong was the citizens' distrust of sitting State Court Judges in Arizona, that after Arizona copied the Federal Rules of Civil Procedure, it added the present Rule 42(f)(1) to provide a mechanism for a litigant to permanently remove the assigned judge from the case.

The difference between selectively disabling a judge in various aspects of adjudication (such as during the appellate period) and the permanent extinguishment of his jurisdiction in a given case, has a logical relevance to a Judge's expectation of enjoying absolute judicial immunity in that case.

In examining entitlement to immunity, the U.S. Supreme Court focused upon the nature of the act: is it an act ordinarily performed by a Judge? Unfortunately, judges sometimes exceed their jurisdiction in a particular case. But an act done in complete absence of all jurisdiction cannot be a judicial act. Piper v. Pearson, id., 2 Gray 120. It is no more than the act of a private citizen, pretending to have judicial power which does not exist at all. In such circumstances, to grant absolute judicial immunity is contrary to the public policy expectation that there shall be a Rule of Law.

How to Sue a Judge

By David C. Grossack, Constitutional AttorneyCommon Law Copyright © 1994   All Rights Reserved

Has a judge violated your constitutional rights? Have you been discriminated against by being treated differently than other people in similar situations by reason of race, religion, national origin, gender, sexual preference or political opinion?  Have you lost certain rights without a meaningful hearing or even an opportunity to be heard?

Have you been deprived of any other constitutional protection? Have you been subject to Court action for the purpose of intimidating you from exercising an opinion, or practicing your faith? Don't let them get away with it.

Although it is almost impossible to recover monetary damages from a judge (unless you can prove he or she acted ultra-vires beyond his or her legal jurisdiction) it is in fact possible to obtain relief in equity against a judge through civil rights actions. Equitable relief includes:

declaratory relief - (rulings by another judge in the form of opinions establishing the constitutionality or lack of constitutionality of another judges actions.)

injunctive relief - a command or order to do something or refrain from doing so.

As a general rule, however, judges cannot be held liable for money damages for acts done in the exercise of his judicial function, within the limits of his jurisdiction, no matter how erroneous, illegal or malicious his acts may be. (48A Corpus Juris Secundum §86) A minority of decisions have held that if an inferior judge acts maliciously or corruptly he may incur liability. Kalb v. Luce, 291 N.W. 841, 234, WISC 509.

Federal Civil Rights statutes, and possibly Bivens actions, appear to offer the best path for redressing constitutional grievances with

state and federal judges, respectively, in Federal Court. As a practical matter, such cases will usually be brought by pro se litigants. Neither the politics nor economics of law practice permits lawyers to pursue such cases nor makes them affordable except to a small elite of citizens.

However, lawyers who do successfully sue state judges in federal court in Title 42 U.S. Code § 1983 cases can recover attorney's fees from judicial defendants provided they can show time sheets kept contemporaneously with their work.

The most important step you have to take in beginning your lawsuit is in writing the complaint that will be conforming to the Federal Rules of Civil Procedure (available in every Government Bookstore or from the Government Printing Office in Washington, DC.)

Properly drafted complaints need not be prepared by a lawyer. All that is required is a very fundamental understanding of a few basic constitutional principles and a typewriter and paper. Handwritten complaints can also be filed in court.

Each federal court publishes its own local rules which can impose some additional requirements, but essentially there are only a handful of things you need to know. 1. Each complaint has a caption reading "United States District Court, District of (name the jurisdiction e.g. Southern New York or Eastern California.) 2. Each complaint includes a caption indicating the name of the plaintiff, and the name of the defendant. The words "individually and in his official capacity" should appear after the name of the defendant judge. The words "Verified Complaint" should appear on the right side of the caption. Your caption should appear like this:

United States District CourtDistrict of (State)

Civil Docket No. _______

John Doe,Plaintiffvs.                                                      VERIFIED COMPLAINT

Bobby Roe,individually and in his/her official capacity as Justice of the Superior Court ) of [*****] County,Defendant

A couple of spaces below, you must begin to spell out your reasons for bringing your complaint to Court.  Make an outline of your case. First, state your "Jurisdictional Basis" in Paragraph I.  I usually write as follows:

JURISDICTIONAL BASIS

I. Plaintiff claims federal jurisdiction pursuant to Article III § 2 which extends the jurisdiction to cases arising under the U.S. Constitution. Next you should write Paragraph II stating the precise Statutory Authority why you brought the case. If you are suing a state judge, you will state:

II. Plaintiff brings this suit pursuant to Title 42 U.S. Code § 1983 for violations of certain protections guaranteed to him by the First, Fifth, Eighth, Ninth and Fourteenth Amendments (select which apply) of the federal Constitution, by the defendant under color of law in his/her capacity as a judge in the Superior Court of (****) County.

If you are suing a federal judge, state:

"Plaintiff brings this action against (name), a federal judicial officer, pursuant to Title 28 U.S. Code § 1331, in claims arising from violations of federal constitutional rights guaranteed in the (fill in) amendments to the U.S. Constitution and redressable pursuant to Bivens v. Six Unknown Narcotics Agents 403 U.S. 388 (1971)."

Be aware that the issue of whether federal judicial officers can in fact be sued under this authority is unresolved, but my opinion is that there is a strong implication in the affirmative based on the language in many cases.

Your complaint should then have a section entitled "Parties". The next two paragraphs would read:

III.  Plaintiff (Your name) is a natural person residing at (Your address), (County), (State).

IV.  Defendant is a Judge presiding at (fill in.)

Following this you must now describe your claim in detail, giving legal and factual basis for your case. This portion of the case is entitled "Statement of Case"

What kind of factual pattern would give rise to a successful claim under the federal civil rights law? Title 42 U.S. Code § 1983 reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The burden of proof is upon the plaintiff to show that the defendant judge acted unconstitutionally or outside of his/her jurisdiction. If the judge engaged in an egregious discrimination against males in a divorce court, minorities in state criminal cases, members of an unpopular religious group in confrontation with government authorities and treated suspiciously in court or members of a "fringe" political group, these situations can give rise to a claim of denial of equal protection under the Fourteenth Amendment.

If a judge permits an ex parte attachment, i.e. seizure of real estate without giving you notice of a hearing in a state court proceeding, this is a deprivation of property without due process, violating the Fifth Amendment as well as the Fourteenth Amendment.

Ex parte restraining orders forcing men or women out of their homes based on abuse allegations in state courts are a primary and rampant example of violations of constitutional rights today, and certainly actionable in federal court.

The first ten amendments of the Bill of Rights are self explanatory. Violations of any of the rights described in these amendments give rise to causes of action, both against state judges under Title 42 U.S.C. § 1983 and arguably against federal judges in Bivens actions.

Pro se litigants should give a clear and concise description of what happened in chronological order, identifying the judge, the date, time, and place of his or her action, and specifying which acts violated which constitutional amendments.

The complaint finishes with a section entitled "Prayer for Relief." In such a case you can ask for an injunction ordering another judge to so something, or to refrain from doing something. Successful use of these suits has been made to nullify attachments, end incarcerations, declare laws or court practices unconstitutional and scare the heck out of black robed tyrants with gavels. See Pulliam v. Allen, 466 U.S. 522 (1983).

I often phrase my prayers for relief as follows:

Wherefore plaintiff prays this Court issue equitable relief as follows:

1. Issue injunctive relief commanding defendant to . . .

2. Issue declaratory relief as this Court deems appropriate just.

3. Issue other relief as this Court deems appropriate and just.

4. Award plaintiff his costs of litigation.

Respectfully submitted,

(Your signature)

Your name printedYour addressCity, State, Zip CodeTelephone No.

Statement of Verification

I have read the above complaint and it is correct to the best of my knowledge.

Your signature

Complaints are filed in the Civil Clerk's Office in the United States District Court for your district.

Federal rules now allow for service of process by certified mail. You will be required to serve the defendant judge and also your state attorney general if you are suing a state judge.

The pro se road will be easier if you study the Federal Rules of Civil Procedure, obtain a Black's Law Dictionary and familiarize yourself with legal research methods. You must also read the Local Rules of the Federal Court where you are suing, and learn Constitutional law fast.

Using a lawyer as a coach is helpful. Bear in mind that your lawsuit is disfavored because it is against a judge. Nevertheless, our system of "justice" is in such tough shape that suits against judges are a socio-political necessity.

Complaints should be photocopied, disseminated to the legislature, the media and political action groups.

Perhaps the cumulative impact of these suits will bring a healthy radical change for the American people.

The author is an attorney in private practice in Boston.

Constitutional BusinessPost Office Box 90

Hull, Massachusetts 02045Tel. 617-925-5253Fax 617-925-3906

Copyright ©1994     All Rights Reserved

Limited License:The right to publish this article off-line in print, or via CD-ROM,

floppy diskette, tape, laser disk, or any other media, electronic or otherwise, can only be granted by the author and must be in writing. Online usage is unrestricted as long as this article,

including the byline, copyright notice, publisher's address, and limited license, is published in its entirety.

The Judicial Doctrine of Immunity "Immunity applies even when the judge is accused of acting maliciously and corruptly." -- United States Supreme Court 

See Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) Pierson v. Ray, 386 U.S., at 554, Mireles v. Waco, 502 U.S. 9, 9-10, 112

S.Ct. 286, 287, 116 L.Ed.2d 9 (1991).

The appropriate role for a judge to play in a jury trial has been the subject of a number of appeals. Listed below are several rulings dealing with judges conduct during trials.  Read carefully and you will see how rules of conduct are "creatively" interpreted and, in some cases, actually negated as a result.

Courts have said a trial judge must always remain fair and impartial.  Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 709 (9th Cir. 1989).  "He must be ever mindful of the sensitive role [the court] plays in a jury trial and avoid even the appearance of advocacy or partiality."  Id. quoting United States v. Harris, 501 F.2d 1, 10 (9th Cir. 1974).

At the same time, however, courts have recognized that a trial judge is "more than an umpire."   United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988), cert. denied, 492 U.S. 906 (1989).

It is perfectly appropriate for a judge to "take part where necessary to clarify testimony and assist the jury in understanding the evidence."  United States v. De Sisto, 289 F.2d 833, 834 (2d Cir. 1961).

Trial judge "may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition" Laurins, 857 F.2d at 537

Finding questions calculated to make testimony clearer to jury not improper.   United States v. Mostella, 802 F.2d 358, 361 (9th Cir.

1986) (same); United States v. Poland, 659 F.2d 884, 893 (9th Cir.) , cert. denied, 454 U.S. 1059 (1981).

"[t]he standard for reversing a verdict because of general judicial misconduct during trial is rather stringent." Kennedy, 901 F.2d at 709. To sustain a claim of this kind, there must be an "extremely high level of interference" by the trial judge which creates "a pervasive climate of partiality and unfairness." United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir. 1982).

"A judge's participation [in the trial] justifies a new trial only if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality."   Laurins, 857 F.2d at 537

"Because this case comes to us in the posture of a habeas appeal, the question is whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution."  Gayle v. Scully, 779 F.2d 802, 806 (2d Cir. 1985), cert. denied, 479 U.S. 838 (1986); McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985).

"judge's excessive questions and sarcastic comments did not amount to "extreme overstepping of his proper judicial role"--conviction affirmed)   Mostella, 802 F.2d at 362  

"finding trial judge's impatience with defense, displays of irritation, and use of sarcasm, while inappropriate, were not prejudicial"   Poland, 659 F.2d at 894

"A federal court has no supervisory authority over criminal proceedings in state courts. The only standards we can impose on the states are those dictated by the Constitution."   Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not "of sufficient gravity to warrant the conclusion that fundamental fairness has been denied."  Id. at 1572.

"trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process"   Gayle v. Scully, 779 F.2d at 807  

Trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, "approached but did not cross the line that permits [a ruling] that the Constitution has been violated"   Daye, 712 F.2d at 1572

As far as judicial discipline goes, one state reported that "Private admonishments" were meted out in the following instances:

The judge made comments that appeared to criticize the jury after its verdict;

the judge made comments to the jury reflecting bias about the case;

the judge abused his authority in an order involving payment of fees;

the judge improperly threatened an attorney with contempt;

the judge made remarks during court proceedings that disparaged the litigants and counsel;

the judge demeaned a potential juror; the judge delayed in ruling on four matters

and executed an inaccurate salary affidavit; the judge proceeded without appointed

counsel despite the defendant’s statements that he wanted counsel and the judge made comments that disparaged the defendant’s version of the case and fostered the appearance that the judge was attempting to pressure the defendant into pleading guilty

"Private advisory letters" were issued in 19 cases which are also summarized in the commission’s report, some of which were:

The judge engaged in activities away from the courthouse during working hours;

the judge delayed for five month in ruling on an issue;

the judge made demeaning remarks about an attorney who was not in court;

the judge displayed anger and rudeness toward an attorney in open court;

the judge displayed sarcasm and derision in remarks toward a pro per litigant in a civil harassment matter;

the judge used judicial stationery to obtain an advantage in a personal business matter;

the judge smoked in chambers in violation of law and despite being reminded of the prohibition by the presiding judge;

the judge used chambers stationery in connection with a personal business dispute;

the judge failed to fully disclose on the record the judge’s relationship with one of the counsel and so forth

Only three judges were publicly disciplined:

One was a retired judge, who altered the record on a previously set bail bond.

Another judge was hardly if ever on the bench for a four year period and engaged in other activities. That judge resigned.

A third judge was removed from the bench. The reason for his removal was not for his activities on the bench, but on charges that he provided false information on two Personal Data Questionnaires he submitted to the Governor when seeking appointment to judicial office. Among the charges were that he made false representations about the colleges and law schools he attended, that he falsely stated he had received a master's

degree, and that he mis-stated the dates he had attended law school, thus hiding the fact that he had failed to pass the California bar examination on several attempts after completing law school. Also that he falsely claimed he served in the Vietnam War.

Moore v. Alaska - a sample peremptory disqualification challenge appeal

THE COURT OF APPEALS OF THE STATE OF ALASKAAppeals No. A-5557/5558 Trial Nos. 3AN-S94-7386/7387/7388CR

WILLIAM R. MOORE, PHILLIP C. WILSON, and ALEXANDER G.PAPPAS, Appellant,

v.

STATE OF ALASKA, [No. 1411 - May 12, 1995]Appellee.______________________________

O P I N I O NAppeal from the Superior Court, Third Judicial District, Anchorage, Karl S.Johnstone, Judge.

Appearances: William P. Bryson, Law Offices of William P. Bryson,Anchorage, for Appellant Moore. Cynthia C. Drinkwater, Assistant PublicAdvocate, and Brant McGee, Public Advocate, Anchorage, for Appellant

Wilson. Sidney K. Billingslea, Law Office of Sidney K. Billingslea,Anchorage, for Appellant Pappas. Kevin T. Fitzgerald, Assistant DistrictAttorney, Edward E. McNally, District Attorney, Anchorage, and Bruce M.Botelho, Attorney General, Juneau, for Appellee. Before: Bryner, ChiefJudge, Coats and Mannheimer, Judges. COATS, Judge.

This is a peremptory challenge appeal brought pursuant to AlaskaAppellate Rule 216(a)(2). A peremptory challenge appeal is "an appeal bya criminal defendant from an order denying the defendant's motion forchange of judge under Criminal Rule 25(d)." Alaska R. App. P. 216(b)(2).The body of Allen C. Boulch was found in Kincaid Park in Anchorage onSeptember 24, 1994. As a result of an investigation into Boulch's death,the state brought criminal charges against William R. Moore, Phillip C.Wilson, Alexander G. Pappas, and Ryan G. Chernikoff. On October 14,1994, the grand jury indicted all four defendants for conspiracy to commitmurder in the first degree, murder in the second degree, conspiracy to

commit robbery in the first degree, and robbery in the first degree. AS11.31.120; AS 11.41.100(a)(1)(A); AS 11.16.110(2)(B); AS11.41.110(a)(3); AS 11.41.500(a)(1) & (2).1On October 17, 1994, Superior Court Judge Karl S. Johnstone arraignedChernikoff, Wilson, and Pappas. Judge Johnstone arraigned Moore onOctober 19 because his attorney was out of the state when he arraignedthe other defendants. At the arraignments, Judge Johnstone advised thedefendants to confer regarding the exercise of their right to peremptorilychallenge a judge pursuant to Alaska Criminal Rule 25(d). JudgeJohnstone gave the parties until October 24 to exercise a joint peremptorychallenge. He assigned all four defendants' cases to Superior Court JudgePeter A. Michalski, with trial set for January 3, 1995.On October 24, 1994, the state and defendants stipulated to extend theperiod for filing the peremptory challenge until October 28. At about thesame time, the defendants all filed motions requesting additionalperemptory challenges and seeking an extension of time in which to file

their peremptory challenge. Judge Michalski denied these motions onOctober 27, 1994. On October 28, 1994, Chernikoff filed a peremptorychallenge of Judge Michalski pursuant to Rule 25(d). JudgeJohnstoneassigned himself to the case.Shortly afterwards, the other three defendants filed objections toChernikoff's exercise of the peremptory challenge; they also asked JudgeJohnstone to grant them additional peremptory challenges. On November25, 1994, Judge Johnstone denied the motions requesting additionalperemptory challenges. This appeal followed.2A party's right to peremptorily challenge a judge in a criminal case isgoverned by Alaska Criminal Rule 25(d): (d) Change of Judge as a Matterof Right. In all courts of the state, a judge may be peremptorily challengedas follows:

(1) Entitlement. In any criminal case in superior or district court, theprosecution and the defense shall each be entitled asmatter of right to one change of judge. When multiple defendants areunable to agree upon the judge to hear the case, the trial judge may, in the

interest of justice, give them more than one change as a matter of right; theprosecutor shall be entitled to the same number of changes as all thedefendants combined.

In Hawley v. State, 614 P.2d 1349, 1360-61 (Alaska 1980), the supremecourt discussed the application of Criminal Rule 25(d) in a case withmultiple defendants:[W]here there are several defendants in a criminal trial, each individualdefendant is not entitled to one peremptory challenge, but rather thedefense as a whole is entitled, as a matter of right, to but one peremptorychallenge. Our rule does provide that where the defendants cannot agreeon the judge to hear the case the trial court, in the interest of justice, cangive more than one change. Here no showing of divergent interest or othercause was made requiring the judge, in the interests of justice, to grantadditional challenges. There is no constitutional right to a peremptorychallenge. To allow each defendant a peremptory challenge would causegreat delays and trial scheduling problems. We conclude that when, as

here, the defendants have substantially similar interests, it is not an abuseof discretion to limit the defense to one peremptory challenge.

(Footnotes omitted.) The court also advised: We believe that the followingprocedures should be observed in multiple defendant cases. The trialcourt should inquire if this is a joint decision or, at least, require that thedefendants confer before rendering its decision. It is not necessary,however, for all defendants to agree to the peremptory challenge. Id. at1361 n.34.In the instant case, the parties conferred extensively but were unable toagree on the use of the peremptory challenge. Some of the defendants didnot want to exercise a peremptory challenge; they preferred JudgeMichalski to remain as the trial judge. Other defendants wished tochallenge Judge Michalski. When the defendants were unable to reach aconsensus, one of the defendants (Chernikoff), apparently actingunilaterally, challenged Judge Michalski.The three defendants who filed appeals in this case assert that the

superior court should have allowed them to veto Chernikoff's unilateralexercise of the peremptory challenge. However, we affirm the superiorcourt's decision.In Murdock v. State, 664 P.2d 589, 594-95 (Alaska App. 1983), this courtstated:[A]lthough the preferable procedure is to have multiple defendants conferin reaching a decision to exercise a peremptory challenge, neither theperemptory challenge rule, the statute, nor the Hawley decision require thedecision to exercise a peremptory challenge to be a joint decision.

This result derives from the rationale of the peremptory challenge rule. Alaska's peremptory challenge rule, Criminal Rule 25(d), is the outgrowthof legislation that was designed to allow a party to challenge a judgewithout filing and litigating a formal challenge for cause. As early as 1940,Alaska law gave litigants the right to disqualify the judge assigned to theircase by filing an affidavit that detailed the reasons for believing that thejudge could not be fair. Because the allegations in this affidavit could not

be controverted, the attorney filing the affidavit had to swear that theaffidavit was filed in good faith and not for purposes of delay. See RobertA. Levinson, Peremptory Challenges of Judges in the Alaska Courts, 6Alaska L. Rev. 269, 272-73 (1977).In 1967, this procedure was liberalized by the Alaska legislature when itenacted AS 22.20.022:Peremptory disqualification of a judge.

(a) If a party or a party's attorney in a district court action or a superiorcourt action, civil or criminal, files an affidavit alleging under oath the beliefthat a fair and impartial trial cannot be obtained, the presiding district courtor superior court judge, respectively, shall at once, and without requiringproof, assign the action to another judge of the appropriate court in thatdistrict, or if there is none, the chief justice of the supreme court shallassign a judge for the hearing or trial of the action. The affidavit shallcontain a statement that it is made in good faith and not for the purpose ofdelay.

Under this statute, a party was still required to file an affidavit "alleging . . .

the belief that a fair and impartial trial [could not] be obtained" from thejudge assigned to the case. However, the party was not required to statethe specific reasons underlying this belief, and the case was to beimmediately reassigned to another judge "without requiring proof" of thefirst judge's bias or partiality. The final stage in the evolution of the peremptory challenge came in 1974,when the Alaska Supreme Court promulgated Criminal Rule 25(d). UnderCriminal Rule 25(d)(2), a party challenging a judge no longer has to file anaffidavit of any kind: A party may exercise the party's right to a change of judge by filing a"Notice of Change of Judge" . . . stating the name of the judge to bechanged. The notice shall neither specify grounds nor be accompanied byan affidavit.

In fact, with the exception of its introductory language ("In all courts of thestate, a judge may be peremptorily challenged as follows:"), Criminal Rule25(d) studiously avoids using the word "challenge." Instead, the rulerepeatedly uses the phrase "change of judge."

The philosophy behind the evolving procedure under the statute and rulewas explored in the Alaska Law Review article referred to above: Since [Criminal Rule 25(d)] drop[s] anyrequirement that charges ofunfairness be made against a judge, [it] may serve to alleviate some of theonus previously associated with having to contend that a judge is unable toprovide a fair trial. Under AS 22.20.022, if a party submitted a proper, timely affidavit,disqualification was automatic. However, . . . [w]hile an attorney couldeasily obtain a different judge so long as the proper steps were followed,[the attorney] still had to assert [under oath] that he could not obtain "a fairand impartial trial" from the judge he sought to recuse. Such an assertion,while rather subdued in nature, still was likely to upset judges.

Levinson, supra, at 282 (footnotes omitted). Thus, Criminal Rule 25(d) wasdesigned "[to] do away with the need for filing of an affidavit alleging theinability to obtain a fair and impartial trial." Gieffels v. State, 552 P.2d 661,668 (Alaska 1976). In Gieffels, the supreme court held that the procedures

specified in Criminal Rule 25(d) took precedence over any inconsistentrequirements contained in AS 22.20.022. While the legislature has createdthe "right to pre-empt a judge without requiring actual proof of bias orinterest," the legislature has very limited power to provide for the means bywhich that pre-emption right may be exercised. Until the legislature validlychanges Criminal Rule 25(d), that rule is the sole provision which may beconsulted in determining whether the pre-emptive right was properlyexercised[.] Gieffels, 552 P.2d at 667 (footnote omitted). Thus, the right to challenge a judge for bias has evolved from a party'sright to litigate a challenge for cause, to a party's right to file an affidavitasserting the judge's inability to be fair, to a party's right simply to file anotice of change of judge. But while the rules have changed to minimizethe confrontation between judges and the litigants who challenge them, theunderlying purpose of the peremptory challenge remains the same: to allowa party who believes that he or she cannot obtain a fair and impartial trial infront of a particular judge to disqualify that judge.

The right of peremptory challenge granted by AS 22.20.022 is a valuabletool for a party to use when the party believes, or even suspects, that he orshe cannot get a fair trial in front of a particular judge. Moreover, theprocedures established in Criminal Rule 25(d) allow parties to readilyexercise this right without a showing or even an allegation of bias.However, because parties may so readily exercise the right of peremptorychallenge, it is foreseeable that at least occasionally a party will disqualify ajudge based upon strategic considerations rather than based upon theparty's belief that he or she cannot obtain a fair trial before that challengedjudge. When we interpret Criminal Rule 25(d), we must keep in mind thatthe primary reason for the rule is to allow a party to disqualify a biasedjudge. The rule was not designed to allow a party to obtain strategicadvantage by forum shopping for an ideal judge. Keeping this rationale in mind, it is not unfair to allow a single defendant ina multiple-party case to unilaterally exercise a peremptory challenge. Theremaining defendants may complain that they would have preferred to

remain in front of the originally assigned judge, but Criminal Rule 25(d)does not give them veto power over another party's peremptory challenge.Litigants are entitled to have their case heard by a fair judge, but "[a]litigant has no right to insist that a matter be heard by any particular judge."Padie v. State, 566 P.2d 1024, 1027-28 (Alaska 1977). An analogous issue arose in Roberts v. State, 458 P.2d 340 (Alaska1969), a case decided under AS 22.20.022 before the supreme court hadpromulgated Criminal Rule 25(d). The essence of appellant's argument isthat when a party files a disqualification affidavit under AS 22.20.022, theopposite party has the right to challenge the effectiveness of thedisqualification. The statute affords the latter party no such right. The onlyright created and defined by the statute is to have a fair trial before anunbiased and impartial judge. The statute does not in any manner purportto give the right to the other party, who does not claim that the assignedjudge is biased or prejudiced, to have the case tried by that judge.Roberts, 458 P.2d at 345-46 (footnote omitted). Similarly, even though two of the defendants in this appeal apparently

wished to have their case remain in front of Judge Michalski, they have noright to insist on a particular judge. When defendants are tried together,each has an interest in having a fair judge preside over the litigation. If thejudge cannot be fair to one of the defendants, it makes no difference thatthe judge might be fair to the others. For these reasons, we uphold thesuperior court's refusal to set aside Chernikoff's peremptory challenge ofJudge Michalski. We next turn to the superior court's refusal to give theother three defendants one or more additional challenges. Obviously,whenever a party asks for a change of judge under Criminal Rule 25(d),there is the possibility that the second judge assigned to the case may beless favorable than the original judge who was peremptorily challenged. Ina single-efendant case, this possibility is simply one of the factors that adefendant must weigh when choosing whether to exercise the right ofperemptory challenge. In a multiple-defendant case, there will be times when all the defendantsconcur in the decision to challenge the origin ally assigned judge. On the

other hand, there will be times when one or more of the co-defendants areunwilling participants in the quest for a new judge. In such circumstances,a defendant may find that the original judge (whom the defendant viewedas perfectly acceptable) has been replaced by a judge who the defendantbelieves may be biased, but the defendants' sole peremptory challengehas already been exercised.Criminal Rule 25(d) provides that "the trial judge may, in the interest ofjustice, give [defendants who are unable to reach consensus] more thanone change as a matter of right." There remains the question of how a trialjudge should decide a motion for additional peremptory challenges. A trialcourt has considerable discretion in this matter because competinginterests must be weighed. A defendant may have articulable reasons todistrust the impartiality of the second assigned judge, even though thesereasons may not be sufficient to support a challenge for cause. On theother hand, Criminal Rule 25(d), by restricting each side to one peremptorychallenge in normal circumstances, implicitly recognizes that the number of

peremptory challenges must be limited if the court system is to functioneffectively. The trial court must also keep in mind that the rationale behind peremptorychallenges is to allow a party to disqualify a judge when the party believesthat the judge might be unable to be fair and impartial. The legislature didnot create the right of peremptory challenge so that a party could obtain astrategic advantage by "shopping" for a judge who might be more willing toindulge the party's trial tactics or might be uncommonly sympathetic to theparty's sentencing arguments. The trial court can reject a request foradditional peremptory challenges when it appears that a party's request isbased on considerations of prospective strategic advantage rather than theparty's fear of the second judge's potential bias or partiality. Returning tothe present case, the defendants have stated that they have divergentinterests and that they have strong reasons for preferring one trial judgeover another. However, as we have just explained, parties are not entitledto pick and choose among the available impartial judges based on strategic

considerations. The right of peremptory challenge is designed only todisqualify potentially biased judges. None of the defendants hassuggested that he believes Judge Johnstone could not be a fair andimpartial judge in this case.3We conclude that the defendants have not shown compelling reasons forawarding additional peremptory challenges. We accordingly find thatJudge Johnstone did not abuse his discretion when he denied thedefendants' motions for additional peremptory challenges.The decision of the superior court is AFFIRMED._______________________________ 1 The grand jury also charged Wilson and Pappas with various counts oftampering with physical evidence in the first degree, AS 11.56.610(a)(1);AS11.16.110(2)(B), and charged Moore and Pappas with misconductinvolving weapons in the third degree, AS 11.61.200(a)(3).

2 As noted above, Alaska Appellate Rule 216(a)(2) and 216(b)(2)authorize a criminal defendant to pursue a pretrial appeal of "an order

denying the defendant's motion for change of judge under Criminal Rule25(d)." The three defendants in this case are not, strictly speaking,appealing the denial of their peremptory challenge of a judge. Rather, theyare appealing the superior court's refusal to grant them additionalperemptory challenges, as well as the superior court's refusal to allow themto object to Chernikoff's peremptory challenge of Judge Michalski. Theseissues may not fall within the letter of Appellate Rule 216, but the reasonsfor allowing pretrial appeals of peremptory challenges appear to apply withequal force to the issues raised in this appeal. To the extent that there isany doubt concerning whether the defendants' appeal is a "peremptorychallenge appeal" as defined in Appellate Rule 216(b)(2), we treat thedefendants' appeal as a petition for review, and we grant it. We commendthis issue to the Alaska Supreme Court's Appellate Rules Committee.

3 As we have explained, Criminal Rule 25(d) is designed to allow partiesto challenge a judge without openly confronting that judge with allegations

of bias or partiality. Thus, a request for additional peremptory challengeswill normally be based on assertions of the second judge's possible bias orpartiality (although, we note again, the party's reasons for fearing a judge'sbias or partiality need not constitute grounds to challenge that judge forcause). Because a motion for additional peremptory challenges willimplicitly declare that the moving defendants wish to challenge thecurrently assigned judge, it seems the better practice to have such motionsheard by a judge other than the currently assigned judge.In the present case, even though Judge Johnstone was the assigned trialjudge, the defendants did not request an opportunity to present theirmotions for additional peremptory challenges to a different judge, and thedefendants have not argued on appeal that they should have been allowedto present their motions to another judge. Moreover, we have concludedthat the defendants' motions were properly denied precisely because thedefendants did not assert that Judge Johnstone might not be a fair judge.Thus, the fact that Judge Johnstone decided the defendants' motions was

not error under the circumstances of this case.