NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
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THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM R. MOORE, )
PHILLIP C. WILSON, and ) Court of Appeals No. A-
5557/5558
ALEXANDER G. PAPPAS, ) Trial Court Nos. 3AN-S94-7386/
) 7387/7388CR
)
Appellant, ) O P I N I O N
)
v. )
)
STATE OF ALASKA, )
) [No. 1411 - May 12, 1995]
Appellee. )
______________________________)
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). Judge
Johnstone 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] any
requirement 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-
defendant 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); AS
11.16.110(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.
