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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANIEL DENARDO, )
) Court of Appeals No. A-6559
Appellant, ) Trial Court No. 3AN-95-4849 Cr
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1533 - May 30, 1997]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, John R. Lohff, Judge.
Appearances: Daniel DeNardo, pro se, for
Appellant. Thane R. Mathis, Assistant Munici-
pal Prosecutor, and Mary K. Hughes, Municipal
Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Joannides, District Court Judge.*
MANNHEIMER, Judge.
Daniel DeNardo was scheduled to be tried in the district
court for the Anchorage municipal offense of unauthorized entry.
On March 4, 1997, DeNardo appeared for trial call before District
Court Judge John R. Lohff. Judge Lohff assigned the trial to
himself. The next day, when the parties appeared for trial,
DeNardo filed a challenge for cause against Judge Lohff. Judge
Lohff denied this challenge. DeNardo then attempted to exercise a
peremptory challenge against Judge Lohff, but Judge Lohff denied
the peremptory challenge too. DeNardo now appeals the denial of
the peremptory challenge. See Appellate Rule 216(a)(2).
Two provisions of Alaska Criminal Rule 25(d) are
pertinent to this case. Under Rule 25(d)(2), a party's peremptory
challenge of a judge "is timely if filed within five days after
notice that the case has been assigned to [that] specific judge".
However, Rule 25(d)(5) specifies that, notwithstanding the 5-day
time period allowed by (d)(2), "[a] party loses the right [to
peremptorily challenge a judge if,] knowing that the judge has been
permanently assigned to the case, [the party] participates before
the judge in ... any subsequent pretrial hearing ... or the
commencement of trial."
The main question presented in this appeal is whether the
litigation of a challenge for cause is a "subsequent pretrial
proceeding" within the meaning of Criminal Rule 25(d)(5), so that
a party who challenges the assigned trial judge for cause is
thereafter barred from exercising a peremptory challenge against
that same judge. We conclude that the answer is "no".
DeNardo exercised his peremptory challenge of Judge Lohff
within the 5-day time period specified in Criminal Rule 25(d)(2).
DeNardo was informed at the trial call on March 4th that Judge
Lohff would be his trial judge, and DeNardo exercised his
peremptory challenge the following day, before trial began.
Despite this chronology, the Municipality of Anchorage
argues that DeNardo's challenge was untimely. The Municipality
points out that, at the trial call, Judge Lohff announced that he
would preside over DeNardo's trial, "not hearing a pre-emption".
The Municipality contends that the judge's words were, in effect,
a directive to DeNardo to either exercise his peremptory challenge
immediately or waive it.
We do not interpret Judge Lohff's remark that way. Judge
Lohff simply said that he would preside over DeNardo's trial unless
one party or the other filed a peremptory challenge. Nothing in
Judge Lohff's words called upon the parties to exercise their
challenge immediately. Similarly, nothing in Judge Lohff's words
indicated that he would not follow the time limit set forth in Rule
25(d)(2) and (d)(5). We thus reject the Municipality's argument
that Judge Lohff required the parties to exercise any peremptory
challenge before they left the trial call hearing.1
The Municipality's next argument is that DeNardo waived
his right to challenge Judge Lohff by participating in a
substantive pre-trial proceeding in front of the judge. The
proceeding that the Municipality refers to is DeNardo's attempt to
challenge Judge Lohff for cause. In essence, the Municipality
argues that any party who challenges an assigned trial judge for
cause thereby engages in a "subsequent pretrial proceeding" within
the meaning of Rule 25(d)(5) and thus forfeits their right to file
a peremptory challenge against that judge.
We reject the Municipality's construction of Rule
25(d)(5) because it is inconsistent with the policy of the rule.
As we explained in Moore v. State, 895 P.2d 507, 511 (Alaska App.
1995), the underlying purpose of the peremptory challenge is to
allow a party to disqualify a judge when the party "believes that
he or she cannot obtain a fair and impartial trial in front of
[that] particular judge", even if the party can not establish
"cause" ? that is, legal grounds for disqualifying the judge.
This policy strongly suggests that if there are potential legal
grounds for the judge's disqualification, those grounds should be
litigated before the party is called upon to exercise a peremptory
challenge.
A similar situation was presented to the California Court
of Appeal in Waldon v. Superior Court, 241 Cal.Rptr. 123 (Cal. App.
1987). Waldon challenged a judge for cause, and the challenge was
denied. Waldon then filed a "petition for writ of mandate" in the
court of appeal (the equivalent of our petition for review), asking
the appellate court to disqualify the judge for cause. When the
court of appeal denied the writ, Waldon exercised a peremptory
challenge against the judge. This too was denied, which brought
Waldon back to the court of appeal. The court of appeal upheld
Waldon's peremptory challenge:
The prosecution concedes and we agree that the
[peremptory] challenge was timely filed. ...
To require Waldon to file his peremptory
challenge before the [interlocutory] review
was completed would effectively deprive him of
his right to pursue his challenge for cause.
Waldon, 241 Cal.Rptr. at 126.
We, too, conclude that a party's
litigation of a challenge for cause should not
work forfeiture of a peremptory challenge
under Criminal Rule 25(d)(5). As explained
above, the purpose of the peremptory challenge
is to allow a party to disqualify a judge even
when there are no provable legal grounds for
the judge's disqualification. Obviously, a
party who succeeds in challenging a judge for
cause will have no need to peremptorily
challenge that judge. By the same token,
however, if a party challenges a judge for
cause and loses, this fact will often do
little to reduce the party's fears that the
judge may be unfair. In those circumstances,
the purpose served by the peremptory challenge
will be just as strong, if not stronger.
We therefore hold that litigation of
a challenge for cause against the assigned
trial judge does not constitute
"participat[ion] before the judge in [a]
subsequent pretrial hearing" for purposes of
Criminal Rule 25(d)(5).2 Because DeNardo had
not previously exercised his peremptory
challenge, because DeNardo's peremptory
challenge was timely under Rule 25(d)(2), and
because DeNardo's right of peremptory
challenge had not been forfeited by an event
specified in Rule 25(d)(5), we conclude that
DeNardo was entitled to exercise a peremptory
challenge against Judge Lohff.
The decision of the district court
is REVERSED. DeNardo exercised a valid
peremptory challenge against Judge Lohff, and
Judge Lohff is therefore disqualified from
further participation in this case. This case
is remanded to the district court for further
proceedings on the charge against DeNardo.
* Sitting by assignment of the chief justice made pursuant to
Article IV, Section 16 of the Alaska Constitution.
1 We do not mean to express any opinion on whether a trial
judge has the authority to enforce stricter time limitations than
the ones specified in Criminal Rule 25(d). Compare Harbor
Enterprises v. Gudjonsson, 803 P.2d 798, 800, 803-04 (Wash. 1991)
(holding that a trial judge may not enforce a different time limit
from the one specified in the peremptory challenge statute).
2 We recognize that in Gardner v. State, 702 P.2d 250, 251
(Alaska App. 1985), this court interpreted the phrase "any
subsequent pretrial hearing" in Criminal Rule 25(d)(5) as referring
solely to pre-trial hearings that occur subsequent to the omnibus
hearing. Under this interpretation, DeNardo obviously wins this
appeal because his litigation of the challenge for cause did not
occur subsequent to an omnibus hearing: indeed, there was no
omnibus hearing in DeNardo's case at all. DeNardo was prosecuted
for a misdemeanor, and omnibus hearings are rarely held in
misdemeanor prosecutions. Because of this difficulty in applying
the Gardner interpretation to misdemeanors, we are reluctant to
base our decision of DeNardo's case on Gardner.
?6? 1533
