Moore v. Alaska - a sample peremptory disqualification challenge appeal

THE COURT OF APPEALS OF THE STATE OF ALASKA
Appeals 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 N
Appeal 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 Public
Advocate, 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 District
Attorney, Edward E. McNally, District Attorney, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.  Before: Bryner, Chief
Judge, Coats and Mannheimer, Judges.  COATS, Judge.

This is a peremptory challenge appeal brought pursuant to Alaska
Appellate Rule 216(a)(2).  A peremptory challenge appeal is "an appeal by
a criminal defendant from an order denying the defendant's motion for
change 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 on
September 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 commit
murder in the first degree, murder in the second degree, conspiracy to
commit robbery in the first degree, and robbery in the first degree.  AS
11.31.120; AS 11.41.100(a)(1)(A); AS 11.16.110(2)(B); AS
11.41.110(a)(3); AS 11.41.500(a)(1) & (2).
1
On October 17, 1994, Superior Court Judge Karl S.  Johnstone arraigned
Chernikoff, Wilson, and Pappas.  Judge Johnstone arraigned Moore on
October 19 because his attorney was out of the state when he arraigned
the other defendants.  At the arraignments, Judge Johnstone advised the
defendants to confer regarding the exercise of their right to peremptorily
challenge a judge pursuant to Alaska Criminal Rule 25(d).  Judge
Johnstone gave the parties until October 24 to exercise a joint peremptory
challenge.  He assigned all four defendants' cases to Superior Court Judge
Peter A.  Michalski, with trial set for January 3, 1995.
On October 24, 1994, the state and defendants stipulated to extend the
period for filing the peremptory challenge until October 28.  At about the
same time, the defendants all filed motions requesting additional
peremptory challenges and seeking an extension of time in which to file
their peremptory challenge.  Judge Michalski denied these motions on
October 27, 1994.   On October 28, 1994, Chernikoff filed a peremptory
challenge of Judge Michalski pursuant to Rule 25(d).  JudgeJohnstone
assigned himself to the case.
Shortly afterwards, the other three defendants filed objections to
Chernikoff's exercise of the peremptory challenge; they also asked Judge
Johnstone to grant them additional peremptory challenges.  On November
25, 1994, Judge Johnstone denied the motions requesting additional
peremptory challenges.  This appeal followed.
2
A party's right to peremptorily challenge a judge in a criminal case is
governed by Alaska Criminal Rule 25(d): (d) Change of Judge as a Matter
of Right.  In all courts of the state, a judge may be peremptorily challenged
as follows:

(1) Entitlement.  In any criminal case in superior or district court, the
prosecution and the defense shall each be entitled as
matter of right to one change of judge.  When multiple defendants are
unable 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; the
prosecutor shall be entitled to the same number of changes as all the
defendants combined.

In Hawley v.  State, 614 P.2d 1349, 1360-61 (Alaska 1980), the supreme
court discussed the application of Criminal Rule 25(d) in a case with
multiple defendants:
[W]here there are several defendants in a criminal trial, each individual
defendant is not entitled to one peremptory challenge, but rather the
defense as a whole is entitled, as a matter of right, to but one peremptory
challenge.  Our rule does provide that where the defendants cannot agree
on the judge to hear the case the trial court, in the interest of justice, can
give more than one change.  Here no showing of divergent interest or other
cause was made requiring the judge, in the interests of justice, to grant
additional challenges.  There is no constitutional right to a peremptory
challenge.  To allow each defendant a peremptory challenge would cause
great delays and trial scheduling problems.  We conclude that when, as
here, the defendants have substantially similar interests, it is not an abuse
of discretion to limit the defense to one peremptory challenge.

(Footnotes omitted.) The court also advised: We believe that the following
procedures should be observed in multiple defendant cases.  The trial
court should inquire if this is a joint decision or, at least, require that the
defendants confer before rendering its decision.  It is not necessary,
however, for all defendants to agree to the peremptory challenge.  Id.  at
1361 n.34.
In the instant case, the parties conferred extensively but were unable to
agree on the use of the peremptory challenge.  Some of the defendants did
not want to exercise a peremptory challenge; they preferred Judge
Michalski to remain as the trial judge.  Other defendants wished to
challenge Judge Michalski.  When the defendants were unable to reach a
consensus, one of the defendants (Chernikoff), apparently acting
unilaterally, 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 unilateral
exercise of the peremptory challenge.  However, we affirm the superior
court's decision.
In Murdock v.  State, 664 P.2d 589, 594-95 (Alaska App.  1983), this court
stated:
[A]lthough the preferable procedure is to have multiple defendants confer
in reaching a decision to exercise a peremptory challenge, neither the
peremptory challenge rule, the statute, nor the Hawley decision require the
decision 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 outgrowth
of legislation that was designed to allow a party to challenge a judge
without filing and litigating a formal challenge for cause.  As early as 1940,
Alaska law gave litigants the right to disqualify the judge assigned to their
case by filing an affidavit that detailed the reasons for believing that the
judge could not be fair.  Because the allegations in this affidavit could not
be controverted, the attorney filing the affidavit had to swear that the
affidavit was filed in good faith and not for purposes of delay.  See Robert
A.  Levinson, Peremptory Challenges of Judges in the Alaska Courts, 6
Alaska L.  Rev.  269, 272-73 (1977).
In 1967, this procedure was liberalized by the Alaska legislature when it
enacted 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 superior
court action, civil or criminal, files an affidavit alleging under oath the belief
that a fair and impartial trial cannot be obtained, the presiding district court
or superior court judge, respectively, shall at once, and without requiring
proof, assign the action to another judge of the appropriate court in that
district, or if there is none, the chief justice of the supreme court shall
assign a judge for the hearing or trial of the action.  The affidavit shall
contain a statement that it is made in good faith and not for the purpose of
delay.

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 the
judge assigned to the case.  However, the party was not required to state
the specific reasons underlying this belief, and the case was to be
immediately reassigned to another judge "without requiring proof" of the
first 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).  Under
Criminal Rule 25(d)(2), a party challenging a judge no longer has to file an
affidavit 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 be
changed.  The notice shall neither specify grounds nor be accompanied by
an affidavit.

In fact, with the exception of its introductory language ("In all courts of the
state, a judge may be peremptorily challenged as follows:"), Criminal Rule
25(d) studiously avoids using the word "challenge." Instead, the rule
repeatedly uses the phrase "change of judge."
 The philosophy behind the evolving procedure under the statute and rule
was explored in the Alaska Law Review article referred to above:
 Since [Criminal Rule 25(d)] drop[s] anyrequirement that charges of
unfairness be made against a judge, [it] may serve to alleviate some of the
onus previously associated with having to contend that a judge is unable to
provide a fair trial.
 Under AS 22.20.022, if a party submitted a proper, timely affidavit,
disqualification was automatic.  However, .  .  .  [w]hile an attorney could
easily 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 fair
and 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) was
designed "[to] do away with the need for filing of an affidavit alleging the
inability 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 inconsistent
requirements contained in AS 22.20.022.  While the legislature has created
the "right to pre-empt a judge without requiring actual proof of bias or
interest," the legislature has very limited power to provide for the means by
which that pre-emption right may be exercised.  Until the legislature validly
changes Criminal Rule 25(d), that rule is the sole provision which may be
consulted in determining whether the pre-emptive right was properly
exercised[.] Gieffels, 552 P.2d at 667 (footnote omitted).
 Thus, the right to challenge a judge for bias has evolved from a party's
right to litigate a challenge for cause, to a party's right to file an affidavit
asserting the judge's inability to be fair, to a party's right simply to file a
notice of change of judge.  But while the rules have changed to minimize
the confrontation between judges and the litigants who challenge them, the
underlying purpose of the peremptory challenge remains the same: to allow
a party who believes that he or she cannot obtain a fair and impartial trial in
front of a particular judge to disqualify that judge.
 The right of peremptory challenge granted by AS 22.20.022 is a valuable
tool for a party to use when the party believes, or even suspects, that he or
she cannot get a fair trial in front of a particular judge.  Moreover, the
procedures established in Criminal Rule 25(d) allow parties to readily
exercise this right without a showing or even an allegation of bias.
However, because parties may so readily exercise the right of peremptory
challenge, it is foreseeable that at least occasionally a party will disqualify a
judge based upon strategic considerations rather than based upon the
party's belief that he or she cannot obtain a fair trial before that challenged
judge.  When we interpret Criminal Rule 25(d), we must keep in mind that
the primary reason for the rule is to allow a party to disqualify a biased
judge.  The rule was not designed to allow a party to obtain strategic
advantage by forum shopping for an ideal judge.
 Keeping this rationale in mind, it is not unfair to allow a single defendant in
a multiple-party case to unilaterally exercise a peremptory challenge.  The
remaining 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 (Alaska
1969), a case decided under AS 22.20.022 before the supreme court had
promulgated Criminal Rule 25(d).  The essence of appellant's argument is
that when a party files a disqualification affidavit under AS 22.20.022, the
opposite party has the right to challenge the effectiveness of the
disqualification.  The statute affords the latter party no such right.  The only
right created and defined by the statute is to have a fair trial before an
unbiased and impartial judge.  The statute does not in any manner purport
to give the right to the other party, who does not claim that the assigned
judge 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 no
right 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 the
judge cannot be fair to one of the defendants, it makes no difference that
the judge might be fair to the others.   For these reasons, we uphold the
superior court's refusal to set aside Chernikoff's peremptory challenge of
Judge Michalski.  We next turn to the superior court's refusal to give the
other 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 be
less favorable than the original judge who was peremptorily challenged.  In
a single-efendant case, this possibility is simply one of the factors that a
defendant must weigh when choosing whether to exercise the right of
peremptory challenge.
 In a multiple-defendant case, there will be times when all the defendants
concur 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 are
unwilling participants in the quest for a new judge.  In such circumstances,
a defendant may find that the original judge (whom the defendant viewed
as perfectly acceptable) has been replaced by a judge who the defendant
believes may be biased, but the defendants' sole peremptory challenge
has already been exercised.
Criminal Rule 25(d) provides that "the trial judge may, in the interest of
justice, give [defendants who are unable to reach consensus] more than
one change as a matter of right."  There remains the question of how a trial
judge should decide a motion for additional peremptory challenges.   A trial
court has considerable discretion in this matter because competing
interests must be weighed.  A defendant may have articulable reasons to
distrust the impartiality of the second assigned judge, even though these
reasons may not be sufficient to support a challenge for cause.  On the
other hand, Criminal Rule 25(d), by restricting each side to one peremptory
challenge in normal circumstances, implicitly recognizes that the number of
peremptory challenges must be limited if the court system is to function
effectively.
 The trial court must also keep in mind that the rationale behind peremptory
challenges is to allow a party to disqualify a judge when the party believes
that the judge might be unable to be fair and impartial.  The legislature did
not create the right of peremptory challenge so that a party could obtain a
strategic advantage by "shopping" for a judge who might be more willing to
indulge the party's trial tactics or might be uncommonly sympathetic to the
party's sentencing arguments.  The trial court can reject a request for
additional peremptory challenges when it appears that a party's request is
based on considerations of prospective strategic advantage rather than the
party's fear of the second judge's potential bias or partiality.   Returning to
the present case, the defendants have stated that they have divergent
interests and that they have strong reasons for preferring one trial judge
over another.  However, as we have just explained, parties are not entitled
to pick and choose among the available impartial judges based on strategic
considerations.  The right of peremptory challenge is designed only to
disqualify potentially biased judges.  None of the defendants has
suggested that he believes Judge Johnstone could not be a fair and
impartial judge in this case.
3
We conclude that the defendants have not shown compelling reasons for
awarding additional peremptory challenges.  We accordingly find that
Judge Johnstone did not abuse his discretion when he denied the
defendants' 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 of
tampering with physical evidence in the first degree, AS 11.56.610(a)(1);
AS11.16.110(2)(B), and charged Moore and Pappas with misconduct
involving 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 Rule
25(d)." The three defendants in this case are not, strictly speaking,
appealing the denial of their peremptory challenge of a judge.  Rather, they
are appealing the superior court's refusal to grant them additional
peremptory challenges, as well as the superior court's refusal to allow them
to object to Chernikoff's peremptory challenge of Judge Michalski.  These
issues may not fall within the letter of Appellate Rule 216, but the reasons
for allowing pretrial appeals of peremptory challenges appear to apply with
equal force to the issues raised in this appeal.  To the extent that there is
any doubt concerning whether the defendants' appeal is a "peremptory
challenge appeal" as defined in Appellate Rule 216(b)(2), we treat the
defendants' appeal as a petition for review, and we grant it.   We commend
this issue to the Alaska Supreme Court's Appellate Rules Committee.

 3 As we have explained, Criminal Rule 25(d) is designed to allow parties
to challenge a judge without openly confronting that judge with allegations
of bias or partiality.  Thus, a request for additional peremptory challenges
will normally be based on assertions of the second judge's possible bias or
partiality (although, we note again, the party's reasons for fearing a judge's
bias or partiality need not constitute grounds to challenge that judge for
cause).  Because a motion for additional peremptory challenges will
implicitly declare that the moving defendants wish to challenge the
currently assigned judge, it seems the better practice to have such motions
heard by a judge other than the currently assigned judge.
In the present case, even though Judge Johnstone was the assigned trial
judge, the defendants did not request an opportunity to present their
motions for additional peremptory challenges to a different judge, and the
defendants have not argued on appeal that they should have been allowed
to present their motions to another judge.  Moreover, we have concluded
that the defendants' motions were properly denied precisely because the
defendants 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.