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Dominguez v. State (4/18/2008) ap-2158

Dominguez v. State (4/18/2008) ap-2158

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) Court of Appeals No. A-10095
Petitioner, ) Trial Court No. 3KN-07-1981 Cr
v. )
) O P I N I O N
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
          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

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
          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

     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
          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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