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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 Attorney


Common 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 Court


District of (State)
Civil Docket No. _______

John Doe,
Plaintiff
vs. 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 printed


Your address
City, State, Zip Code
Telephone 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 Business
Post Office Box 90
Hull, Massachusetts 02045
Tel. 617-925-5253
Fax 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
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.
______________________________

OPINION
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.