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opinion is published in the Pacific Reporter. Readers
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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JAY DOMINGUEZ, | ) |
| ) Court of Appeals No. A-10095 | |
| Petitioner, | ) Trial Court No. 3KN-07-1981 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Respondent. | ) No. 2158 April 18, 2008 |
| ) | |
Petition for Review from the Superior Court,
Third Judicial District, Kenai, Anna M.
Moran, Judge.
Appearances: Hatton Greer and Douglas O.
Moody, Assistant Public Defenders, and
Quinlan Steiner, Public Defender, Anchorage,
for the Petitioner. June Stein, District
Attorney, Kenai, and Talis J. Colberg,
Attorney General, Juneau, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This case presents a controversy concerning the
authority of a judge to play a further role in litigation after
the judge has been peremptorily challenged.
At common law, a disqualified judge was not wholly
barred from further participation in the case. Rather, the judge
was permitted to take purely administrative or ministerial
actions in the case i.e., actions that do not involve a
resolution of any of the issues raised in the litigation and that
do not otherwise affect the litigation rights of the parties.1
However, Alaska Criminal Rule 25(d)(3) codifies a
stricter rule. The first sentence of Rule 25(d)(3) declares
that, if a party peremptorily challenges a judge in a timely
manner, [that] judge shall proceed no further in the action,
except to make such temporary orders as may be absolutely
necessary to prevent immediate and irreparable injury before the
action can be transferred to another judge.
The next sentence of Rule 25(d)(3) codifies a limited
exception to this fairly strict rule of disqualification, but the
exception applies only to presiding judges: [I]f the
[challenged] judge is the presiding judge, the judge shall
continue to perform the functions of the presiding judge.
For the reasons explained here, we conclude that the
stricter disqualification provisions of Criminal Rule 25(d)(3)
take precedence over the broader authority that disqualified
judges would have under the common law. Thus, unless the
challenged judge is a presiding judge, the challenged judge is
disqualified from any further participation in the case, except
to make any temporary orders that are absolutely necessary to
prevent immediate and irreparable injury before the action can be
transferred to another judge.
Underlying facts, and the procedural posture of this
case
The petitioner, Jay Domˇnguez, is being
prosecuted in the Kenai superior court. Under Criminal
Rule 25(d), Domˇnguez peremptorily challenged Superior
Court Judge Anna M. Moran. This peremptory challenge
was filed on October 16, 2007. Because of the
peremptory challenge, Domˇnguezs case was re-assigned
to Superior Court Judge Larry D. Card on October 24th.
One month later, on November 28th, the
superior court issued an order re-assigning Domˇnguezs
case to Superior Court Judge Carl Bauman for purposes
of trial. However, this same order declared that
[Domˇnguezs] [o]mnibus hearing remains set for November
30, 2007, ... before Judge Moran i.e., set before the
judge whom Domˇnguez challenged on October 16th.
(We note, in passing, a question regarding
the underlying lawfulness of this November 28th order.
The order which contains two judicial assignments, as
well as a rescheduling of Domˇnguezs trial was not
signed by a judge, but rather by a judicial
administrative assistant. The order does not even
recite that it was entered at the direction of a judge.
Rather, from the text of the order, it appears that
these decisions were made by the judicial assistant.
However, neither party raises any objection on this
point, so we will proceed under the assumption that,
despite its wording, the order was in fact issued at
the direction of a judicial officer.)
When the parties appeared in court on
November 30th, Domˇnguezs attorney questioned Judge
Morans authority to preside over the omnibus hearing.
Judge Moran took the position that she could preside
over the omnibus hearing unless there were substantive
decisions to be made. Domˇnguezs attorney conceded
that there were no substantive issues to be decided at
the omnibus hearing. Nevertheless, the defense
attorney insisted that Rule 25(d)s exception for
administrative and ministerial actions applied only to
presiding judges and that, because Judge Moran was not
a presiding judge, Rule 25(d) prohibited Judge Moran
from presiding over the omnibus hearing.
Judge Moran was not persuaded by this
argument, and she proceeded with the omnibus hearing.
Thereafter, Domˇnguez filed appellate
pleadings asking this Court to review the lawfulness of
Judge Morans action.
Domˇnguez labeled his pleadings as an appeal
under Alaska Appellate Rule 216. This rule authorizes
expedited, pre-judgement appeals of order[s] denying [a
criminal] defendants motion for change of judge under
Criminal Rule 25(d).
The Appellate Court Clerks Office accepted
Domˇnguezs appeal under Appellate Rule 216, but this
appears to have been wrong. As explained here,
Domˇnguez is not seeking review of an order denying his
attempt to peremptorily challenge a judge. To the
contrary: Domˇnguezs peremptory challenge of Judge
Moran was granted, and the case was re-assigned to
another judge. Rather, the issue here is whether the
Kenai superior court (in its order of November 28th)
and Judge Moran (at the omnibus hearing on November
30th) took actions that were unauthorized, given the
fact that the superior court had already granted
Domˇnguezs peremptory challenge.
Even though this litigation does not qualify
as an appeal under Appellate Rule 216, we exercise our
authority to treat the litigation as a petition for
review. This case presents an important issue
concerning the meaning of Criminal Rule 25(d)(3)
specifically, the scope of a judges authority to
participate in litigation after the judge has been
peremptorily challenged.
We addressed this same question of appellate
procedure in Moore v. State, 895 P.2d 507 (Alaska App.
1995). Like Domˇnguezs case, Moore did not involve the
denial of peremptory challenge; rather, it involved
other important issues surrounding the application of
Criminal Rule 25(d) in the context of co-defendants
exercising their right of peremptory challenge. We
recognized that the trial courts decision in Moore was
not strictly appealable under the terms of Appellate
Rule 216, but we concluded that the case presented an
instance where it was appropriate for this Court to
exercise its authority to treat the case as a petition
for review (and to grant review):
Alaska Appellate Rule 216(a)(2) and
216(b)(2) authorize a criminal defendant to
pursue a pretrial appeal of an order denying
the defendants 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 courts
refusal to grant them additional peremptory
challenges, as well as the superior courts
refusal to allow them to object to [one co-
defendants] 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 [this] appeal is a
peremptory challenge appeal as defined in
Appellate Rule 216(b)(2), we treat [the]
appeal as a petition for review, and we grant
it.
Moore, 895 P.2d at 509 n. 2.2
Why we conclude that Judge Moran should not have
presided over the omnibus hearing in this case
As the Alaska Supreme Court acknowledged in
Gieffels v. State, 552 P.2d 661, 666 & n. 3 (Alaska
1976), the common-law rule of judicial disqualification
did not totally bar a disqualified judge from further
participation in the case. The judge was permitted to
take purely administrative or ministerial actions in
the case. Judge Moran relied on this doctrine when she
ruled that she could preside over Domˇnguezs omnibus
hearing as long as there were no substantive issues to
be decided.
But as this Court explained in Dayton v.
State, 120 P.3d 1073, 1080 (Alaska App. 2005), the
courts can not rely on their common-law authority in
disregard of existing constitutional and statutory
provisions. [When] the legislature enacts a statute to
govern the same matter, the statute controls. Id.
Accord, Dandova v. State, 72 P.3d 325, 333 (Alaska App.
2003); see also Roberts v. Alaska Dept. of Revenue, 162
P.3d 1214, 1220-21 (Alaska 2007) (applying this same
rule).
Here, the pertinent statute is a court rule
enacted by the Alaska Supreme Court under the authority
conferred by Article IV, Section 15 of our state
constitution. But the principle remains the same:
when a statute or court rule has been enacted for the
purpose of governing a matter that was once governed by
a common-law rule, the statute or court rule supersedes
the common-law rule.
Alaska Criminal Rule 25(d) is such a rule:
it governs the authority of a disqualified judge to
participate further in the litigation from which the
judge is disqualified.
Subsection (3) of Criminal Rule 25(d) carries
forward the common-law rule that a disqualified judge
has the authority to conduct purely administrative or
ministerial actions in the case but, under the terms
of subsection (3), this authority is now limited to
presiding judges. For all other judges, the
disqualification imposed by Criminal Rule 25(d) is
nearly absolute: the judge shall proceed no further in
the action, except to make such temporary orders as may
be absolutely necessary to prevent immediate and
irreparable injury before the action can be transferred
to another judge.
We note, as a word of caution to the bench
and bar, that the headnote in the Alaska Reporter that
describes the pertinent holding of Gieffels Headnote
11 is worded in a misleading manner. This headnote
reads:
If [a] procedural or administrative
action taken by [a] preempted judge under
[the] provisions of [C]riminal [R]ule [25(d)]
... could not possibly interfere with [a]
defendants right to [a] fair disposition of
his case because of bias or interest on [the]
part of [the] preempted judge, then [the]
substantive right created by [AS 22.20.022]
to [a] fair trial before [an] impartial judge
would not be affected; only if [the preempted
judges] administrative or procedural action
interferes with [the] substantive parts of
[the] statute would action by [the]
disqualified judge be impermissible.
Gieffels, 552 P.2d at 662.
This headnote has apparently led
some judges and lawyers to interpret Gieffels
as holding that, even when a judge is pre-
empted under Criminal Rule 25(d), the
disqualified judge is nevertheless authorized
to attend to ministerial tasks and to decide
administrative matters. This is not so. As
we have explained here, the exception
codified in Rule 25(d)(3) for ministerial and
administrative matters applies only to
presiding judges.
Reasonable people might argue that
there is no harm in allowing all disqualified
judges to perform these administrative or
ministerial tasks. But after the supreme
courts enactment of Criminal Rule 25(d), the
courts are no longer the proper forum to air
that argument. Rather, that argument must be
presented to the supreme court (in its
legislative capacity) or to the Alaska
Legislature (which also has the power to
amend the court rules). This Courts duty is
to enforce Criminal Rule 25(d) as it is
written.
We therefore conclude that it was
error for Judge Moran to preside over the
omnibus hearing in this case. The error may
well have been harmless, for Domˇnguez
concedes that no substantive issues were
presented at that omnibus hearing. But it is
important for the trial courts to follow the
dictates of Criminal Rule 25(d)(3) in the
future. Accordingly, the decision of the
superior court is DISAPPROVED.
According to the superior court
clerks office, Domˇnguezs criminal case is
still pending. If Domˇnguez believes that he
has been prejudiced in any way by Judge
Morans decision to preside over the omnibus
hearing, he may now raise that claim of
prejudice in the superior court.
_______________________________
1 See Gieffels v. State, 552 P.2d 661, 666 & n. 3 (Alaska
1976); see also Tunley v. Anchorage School District, 631 P.2d 67,
73 n. 12 (Alaska 1980).
2For other cases discussing the power of an appellate court
to treat a misfiled appeal as a petition for review,
see Thoeni v. Consumer Electronic Services, 151 P.3d
1249, 1253-54 (Alaska 2007), Tlingit-Haida Regional
Electric Authority v. State, 15 P.3d 754, 761 (Alaska
2001), and State v. Prince, 53 P.3d 157, 161-62 (Alaska
App. 2002).
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