NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RUPLE SMITH, )
) Court of Appeals No. A-5489
Appellant, ) Trial Court No. 3KN-94-1024
Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1385 - December 23, 1994]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Kenai, Jonathan H. Link,
Judge.
Appearances: Donna J. McCready,
Assistant Public Advocate, and Brant G.
McGee, Public Advocate, Anchorage, for
Appellant. Sharon A. S. Illsley, District
Attorney, Kenai, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Ruple Smith stands indicted for sexual assault and
sexual abuse of a minor. During his initial appearance before
Superior Court Judge Jonathan H. Link, Smith attempted to
peremptorily challenge Judge Link, but the judge ruled that
Smith's challenge was premature because the case had not yet been
assigned to a judicial officer for trial. Judge Link proceeded
to set bail, to schedule a pre-trial hearing, and to rule on pre-
trial matters involving discovery. Smith appeals Judge Link's
refusal to honor Smith's peremptory challenge.
As a preliminary matter, the State argues that any
error is harmless and that Smith's appeal is now moot. The State
points out that, in the weeks since Smith filed this appeal,
Judge Link formally assigned Smith's case to himself. Smith
again challenged Judge Link, and Judge Link honored this
challenge. Smith's case has now been assigned to another
superior court judge. The State contends that, even if Judge
Link should have honored Smith's earlier peremptory challenge,
the fact that Judge Link has honored Smith's renewed challenge
means that Smith's appeal is moot - that the issues Smith wishes
to litigate on appeal will not affect the course of the
proceedings in the superior court. We disagree.
Because Judge Link has already issued rulings on pre-
trial matters, Smith's appeal is not moot. If Judge Link was
authorized to ignore Smith's peremptory challenge and to issue
pre-trial rulings in Smith's case, then Judge Link's pre-trial
rulings would remain valid even if Smith now exercises a
peremptory challenge and gets a new judge. Under this
hypothetical state of affairs, Judge Link's pre-trial rulings
would be presumptively binding throughout the case, and Smith
assumedly would have to show good cause under Criminal Rule 42(k)
before another judge could reverse those rulings. However, if
Smith was entitled to exercise a peremptory challenge when he
first appeared in front of Judge Link, then the judge's
subsequent pre-trial rulings would be invalid and Smith would be
entitled to relitigate those issues de novo.
We therefore turn to the merits of Smith's argument.
Under Alaska Criminal Rule 25(d), litigants are "entitled as a
matter of right to one change of judge". A challenge to a judge
under Rule 25(d) is "peremptory" -- that is, the litigant need
not demonstrate good cause for the judge's recusal or disqualifi
cation. Rule 25(d)(2) declares that a peremptory challenge must
be made "within five days after notice that the case has been
assigned to a specific judge".
In the present case, Judge Link apparently read this
language to mean that a peremptory challenge can not be made
until a case is assigned to a specific judge. Such an
interpretation is inconsistent with the supreme court's decision
in Gieffels v. State, 552 P.2d 661 (Alaska 1976). In Gieffels,
the defendant sought to challenge the judge who was conducting
his arraignment. The judge refused to honor the peremptory
challenge, declaring that the defendant's arraignment was merely
a "procedural matter". Gieffels, 552 P.2d at 664.
The supreme court reversed the trial judge's decision.
The court noted that, even before a judge is formally assigned to
a case, a litigant may be prejudiced by the judge's pre-trial
rulings:
Normally, calendaring orders and other
[purely] procedural matters ... do not
directly affect the ultimate disposition of
the case. On the other hand, rulings on
points of law regarding such matters as
search and seizure, sufficiency of the
indictment[,] and other pre-trial legal
decisions could be affected by bias or
interest and would have a direct effect on
the ultimate disposition of a defendant's
case.
. . . .
[Even calendaring may,] under some circum
stances[,] affect [a litigant's] substantial
rights ... . Therefore, if calendaring
becomes a disputed issue, it should be immedi
ately referred to another judicial officer.
. . . .
[Moreover, even though] bail questions
generally have no bearing on the process that
determines the guilt or innocence of a defen
dant[,] ... we have consistently recognized
the importance of ... bail[.] Inability to
meet bail requirements could cause
incarceration interfering with a defendant's
preparation of his [or her] defense. We ...
recognize that allowing a challenged judge to
resolve disputed questions surrounding bail
can possibly lead to an unjust temporary
imprisonment of an individual. Therefore, if
the amount of bail or the conditions [of
bail] are disputed issues, the setting of
bail should be immediately referred to
another judicial officer. Furthermore, the
defendant should be advised of his [or her]
right to have bail heard by another judge.
Gieffels, 552 P.2d at 669-670.
After the decision in Gieffels, it is clear that the
scope of peremptory challenge is not limited to judges who have
been formally assigned to the case. Rather, the right of
peremptory challenge is designed to protect a litigant against a
judge's participation in any stage of the proceedings in which
"actions [are taken that] could interfere with the right of a
defendant to a fair disposition of [the] case". Gieffels, 552
P.2d at 669.
We therefore hold that Judge Link should have honored
Smith's peremptory challenge. Under Criminal Rule 25(d)(3),
Judge Link should have "proceed[ed] no further in the action,
except to make such temporary orders as [might] be absolutely
necessary to prevent immediate and irreparable injury before the
action [could] be transferred to another judge". Under Rule
25(d)(3), if no other judge was immediately available, Judge Link
was authorized to take such steps as obtaining counsel for Smith,
scheduling Smith's next court appearance, and setting Smith's
bail - although the judge was also obliged to inform Smith of his
right to have bail reviewed by the new judge.
The decision of the superior court is REVERSED. Judge
Link's pre-trial discovery orders are vacated. And, as indicated
above, Smith is also entitled to have another judge reconsider
bail.
