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Staso v. Depts. of Transportation & Administration (5/26/95), 895 P 2d 988
NOTICE: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, (907)264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL STASO, )
) Supreme Court No. S-6236
) Superior Court No.
v. ) 3AN-93-10662 CI
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF TRANSPORTATION, DEPARTMENT )
OF ADMINISTRATION, and )
THOMAS KLUBERTON, )
Respondents. ) [No. 4214 - May 26, 1995]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Karl S. Johnstone, Judge.
Appearances: Allison E. Mendel, Mendel
& Huntington, Anchorage, for Petitioner.
John L. Steiner, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Respondents.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
This petition for review arises from a denial of a
peremptory disqualification sought under Alaska Civil Rule 42(c).
Michael Staso (Staso) sought to peremptorily disqualify the judge
assigned to a case he refiled after it had been dismissed
pursuant to Civil Rule 16.1(g). The disqualification was denied.
The trial court concluded that Staso's peremptory
disqualification of the assigned judge in the dismissed case had
exhausted his right of peremptory disqualification. We reverse.
II. FACTS AND PROCEEDINGS
Michael Staso refiled a previously dismissed suit
against the State of Alaska. He claims that his constitutional
rights were infringed when the State disseminated an allegedly
false and damaging employment reference about him. Both suits
allege that this reference has interfered with his ability to
pursue his chosen profession.1
The original case filed by Staso, 3AN-92-6648, was
assigned to Judge J. Justin Ripley. It was subject to the
special procedural requirements of Alaska Civil Rule 16.1, which
are intended to reduce delay and costs in certain civil cases.
See Alaska R. Civ. P. 16.1. Through the exercise of his right of
peremptory disqualification under AS 22.20.022 and Alaska Rule of
Civil Procedure 42(c), Staso had Judge Ripley removed from the
case. The case was reassigned to Judge Joan M. Woodward. After
Staso failed to file a motion to set trial and certificate within
270 days of service of his summons and complaint, the time
allotted under Civil Rule 16.1(g), the Clerk of Court distributed
a Notice of Transfer to Inactive Calendar and of Intent to
Dismiss. The notice informed Staso that if he did not file a
motion to set trial and certificate within 60 days, the case
would be dismissed without prejudice.
Staso moved to set trial on the last possible day.
However, Staso's motion did not comply with Rule 16.1. The
allotted time expired before he could resuscitate his motion.
Judge Woodward dismissed the case without prejudice, pursuant to
Civil Rule 16.1(g). She denied Staso's motions for
reconsideration and relief from judgment.2 She also denied
Staso's motion to reinstate the case pursuant to Civil Rule
Staso refiled suit on November 22, 1993 with a
complaint identical to that filed in the original case. On the
Civil Case Characterization Form, required by Civil Rule 16.1,
Staso indicated that this case had been previously filed and
dismissed without prejudice under Civil Rule 16.1(g).
Exercising its right of peremptory challenge, the State
filed a Notice of Change of Judge along with a Motion for
Assignment of Case to Judge Previously Assigned.3 As requested
by this motion, Presiding Judge Karl S. Johnstone reassigned the
refiled case to Judge Woodward. Staso did not object or request
reconsideration of the reassignment.
Staso filed a Notice of Change of Judge on the sixth
working day after the Order was granted. The State objected to
Staso's challenge of Judge Woodward, arguing that Staso had
already exercised his right of peremptory disqualification when
he disqualified Judge Ripley in the original case. Judge
Johnstone denied Staso's challenge on two grounds: (1) the
refiling of the same suit does not give Staso the right to a
second peremptory disqualification; and (2) as Staso had filed
pleadings before Judge Woodward, he waived his right to
peremptorily disqualify Judge Woodward. Staso's request for
reconsideration was denied. Staso then petitioned this court for
review. Alaska R. App. P. 402(a). We granted review solely on
the question of whether Staso may peremptorily disqualify Judge
A. Standard of Review
Both parties correctly observe that the trial court's
interpretation and application of Alaska Civil Rule 42(c) is a
question of law which this court must review de novo. See Ford
v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991).
In deciding whether this case is the same "action" within the
meaning of Civil Rule 42 as the case previously dismissed under
Civil Rule 16.1, "[w]e are not bound by the superior court's
resolution of questions of law, but instead must adopt the rule
of law which is most persuasive in light of precedent, reason,
and policy." Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
B. Staso Was Entitled To A New Peremptory
We believe it prudent to adopt a bright-line by which
litigants can determine whether they have a right under Civil
Rule 42(c) to disqualify the assigned judge. A refiled suit,
which is assigned a new docket number, for which new filing fees
are imposed, and for which new process must issue, provides this
necessary bright-line. Thus, a refiled suit even if identical to
a case dismissed under Civil Rule 16.1(g), is a new "action"for
Civil Rule 42 purposes. Were we to hold otherwise, the resulting
uncertainties would leave litigants unable to ascertain their
rights under Civil Rule 42.4
Alaska Rule of Civil Procedure 42(c)(1) provides: "In
an action pending in the Superior or District Courts, each side
is entitled as a matter of right to a change of one judge and of
one master." This rule is controlling because although AS
22.20.022 creates the substantive right of peremptory
disqualification, Civil Rule 42(c) controls the procedure and
scope of such disqualifications in civil proceedings. Tunley v.
Municipality of Anchorage Sch. Dist., 631 P.2d 67, 70-71 (Alaska
The parties agree that Staso's refiled suit is
substantively the same as the case dismissed under Civil Rule
16.1. His refiled complaint is an exact copy of the complaint
filed in the original case. Thus, in ruling on this petition we
must answer the question of whether a refiled suit is a new
"action" which gives rise to a right of peremptory
disqualification under Civil Rule 42(c).
Staso makes essentially one argument: he should have
been entitled to a change of judge in the refiled suit because it
was procedurally separate from the case dismissed pursuant to
Rule 16.1(g). Although he concedes that the refiled suit is
identical to the case previously dismissed, he argues that it is
not the same "action or proceeding"within the meaning of Rule
42.6 Staso correctly observes that this court and the Alaska
Court of Appeals have consistently held that a party is not
entitled to a second peremptory disqualification of a judge, or
to relief from the waiver or timeliness requirements of Rule 42,
where the proceeding in which the disqualification sought is
"ancillary to and a continuation of the underlying . . . action."
Webber v. Webber, 706 P.2d 329, 330 (Alaska App. 1985) (holding
that a defendant in a criminal contempt proceeding is not
entitled to disqualify peremptorily the trial judge who presided
over the civil matter out of which the contempt charge arose,
because the contempt proceeding was not a new action giving rise
to a new right to disqualify the judge).7
The State argues that the prior "decisions of this
Court and the Alaska Court of Appeals demonstrate that the right
to a single peremptory challenge of a judge attaches to a
substantive action, without regard to its procedural status."
The State correctly notes that in Gieffels v. State, 552 P.2d 661
(Alaska 1976), we held that a judge, who has been peremptorily
disqualified under Criminal Rule 25(d) in an earlier proceeding
under an indictment which was later dismissed, cannot conduct the
later proceedings which arise from a second identical indictment.
The controversy in Gieffels involved the criminal analog to Civil
Rule 42. The court in Gieffels followed the reasoning in
McKinnon v. State, 526 P.2d 18 (Alaska 1974):
[W]here two proceedings involve the same
defendant and the necessity of proving the
same facts and issues, a judge who was
preempted in the prior proceeding is
automatically disqualified from presiding "at
any proceeding against the defendant in which
those same charges [are] at issue."
Gieffels, 552 P.2d at 665 (quoting McKinnon, 526 P.2d at 25).
These cases demonstrate that in a number of situations,
collateral proceedings are considered the same action for Civil
Rule 42(c) purposes. However, they can be distinguished from the
case at bar. Staso correctly asserts that all of the prior cases
addressing peremptory disqualification of a judge concern a
collateral or later proceeding in a single case. In no prior
case was the later or collateral proceeding filed as a separate
case.8 Specifically, McKinnon and Gieffels are distinguishable
because the issue in both cases is whether a judge already
peremptorily disqualified could hear later proceedings relating
to the original case.9 See Gieffels v. State, 552 P.2d 661
(Alaska 1976); McKinnon v. State, 526 P.2d 18 (Alaska 1974).
For the foregoing reasons we hold that a refiled suit,
even if identical to a case dismissed under Civil Rule 16.1(g),
is a new action for Civil Rule 42 purposes. In coming to this
conclusion we recognize that in prior cases this court has
emphasized substantive similarity between proceedings when
determining whether the proceedings were collateral proceeding
for Civil Rule 42 and Criminal Rule 25 purposes. However,
drawing a bright-line where a refiled case is given a new docket
number, new filing fees are imposed, and new process is served is
necessary to avoid uncertainties which would leave litigants
unclear of their rights under Civil Rule 42.
C. Public Policy Does Not Mitigate Against
Holding That A Refiled Case Is Not The Same
Case For Rule 42(c) Purposes.
In addition to arguing that under its interpretation of
Civil Rule 42(c), Staso is not entitled to a peremptory
disqualification, the State asserts that it would be contrary to
public policy to allow a new right to disqualify a judge in a
refiled suit which has been dismissed under 16.1(g). It reasons
that "[i]f re-filing a dismissed case were to create a new
peremptory challenge right, a party could intentionally allow a
case to be dismissed pursuant to Rule 16.1, just to get rid of a
judge by new challenge." The State also points out that under
Staso's reasoning, parties would receive a new right of
peremptory disqualification when their cases were dismissed under
Civil Rule 41(a) (voluntary dismissal). Invoking the predictable
slippery slope warning, the State goes on to argue that because
there is no limit to how often a party can file a notice of
dismissal and refile suit, there would be no limitations on a
party's ability to "judge shop." We disagree with the State.
In this case Staso did not invite dismissal. As Staso
emphasizes it would rarely be worth the risk for a party to
invite dismissal in order to be able to disqualify the next
assigned judge. Both Civil Rule 16.1(g) and Civil Rule 41(d)
provide for sanctions against a party who refiles a dismissed
case.10 These sanctions afford courts the tools necessary to
deter litigants from judge shopping through voluntary or
involuntary dismissals. See Alaska R. Civ. P. 16.1(g); Alaska R.
Civ. P. 41(d).
The State also argues that although Staso did not
intentionally invite dismissal in this case, he has sampled Judge
Woodward's rulings on this matter. The State contends that Staso
cannot have been pleased with either her imposition of costs from
the dismissed case or her failure to reconsider the grant of
costs.11 This policy argument that Staso has tasted Judge
Woodward's rulings is merely a waiver argument in another form.
As will be discussed in the following section, Staso has not
waived his right under Civil Rule 42.
D. Staso Did Not Waive His Civil Rule 42
The superior court incorrectly held that Staso had
waived his right to a peremptory disqualification in his refiled
suit. Civil Rule 42(c)(4) designates the circumstances under
which a party may be deemed to have waived his or her right to
disqualify a judge under Civil Rule 42(c)(4).
A party waives the right to change as a
matter of right a judge who has been
permanently assigned to the case by knowingly
participating before that judge in:
(i) Any judicial proceeding which
concerns the merits of the action and
involves the consideration of evidence or of
(ii) A pretrial conference; or
(iii) The commencement of trial;
(iv) If the parties agree upon a
judge to whom the case is to be assigned.
Such waiver is to apply only to the agreed
Alaska R. Civ. P. 42(c)(4).
Although the State admits that none of these
requirements pertain in this case, it argues that this court
should find Staso waived his right to peremptorily disqualify
Judge Woodward. The State relies on this court's holding that
submission of a substantive motion to a judge is enough to
constitute a waiver of the right to peremptorily disqualify that
judge. See Kodiak Island Borough, 622 P.2d at 442-443 (holding
that the submission of a Civil Rule 12(b)(6) motion was enough to
waive the right to peremptorily disqualify).
The State asserts that according to the reasoning in
Kodiak Island Borough three of Staso's actions should constitute
waivers of his right to peremptorily disqualify Judge Woodward.
First, the State emphasizes the appearances which Staso made in
the original action. For example, (a) he filed a motion to set
trial; (b) he sought reconsideration of the dismissal order; (c)
he moved for vacation of judgment. If these actions constituted
waiver (which they do not) and the refiled suit was found to be a
continuation of the original action (which it is not), then the
waiver would extend to the later action. See Webber, 706 P.2d at
330 (concluding "that since Webber waived his right to challenge
Judge Carlson in the domestic relations proceedings, he waived
the right to peremptorily disqualify Judge Carlson in the
ancillary criminal contempt proceeding").
None of Staso's actions in the dismissed case waived
his right to peremptorily disqualify Judge Woodward in the
refiled suit. The three filings that the State offers as
evidence of waiver all took place in the original case. As we
have held that the original case is a separate action from the
refiled suit, any motions made in that case cannot be used to
establish waiver in this case. Additionally, the actions
emphasized by the State are substantively different from those
which will constitute waiver under the statute. None of the
motions made in the original case concerned the merits of the
case: there was no pretrial conference or substantive motion
made. Thus, Staso did nothing which would necessitate a finding
that he had waived his right to peremptorily disqualify Judge
Woodward. See Alaska R. Civ. P. 42(c)(4). Second,
the State asserts that Staso waived his right to disqualify Judge
Woodward when he failed to oppose the motion to reassign to her
the refiled suit. Staso responds that he did not oppose the
State's motion to reassign the case to Judge Woodward, because
the order was granted before his time to respond had expired.
According to Staso the motion to reassign the case was served by
mail on December 20, and the order approving it was signed
December 30. This was four days before Staso's response was due
under Civil Rule 77(c).
Regardless of the timing of the motion, Staso correctly
asserts that he cannot have waived his right to peremptorily
disqualify Judge Woodward by not opposing the State's motion to
reassign the case. A party cannot waive the right to
peremptorily disqualify a judge until the judge has been
permanently assigned to the case.
This requirement of knowing waiver
requires that waiver can be found only where
the requisite participation occurs after the
party is informed that the judge before whom
he or she is appearing is the judge
permanently assigned to hear the case or is
assigned for trial.
Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67, 73
(Alaska 1981); see also Dean v. Firor, 681 P.2d 321, 324 (Alaska
1984). Staso did not waive his peremptory challenge by failing
to object to the State's motion to reassign Judge Woodward. He
cannot have known that Judge Woodward would be the permanently
assigned judge until she was assigned and until any objection to
her assignment was ruled upon.
Finally, the State argues that Staso waived this right
by continuing to participate before Judge Woodward after filing
his Notice of Change of Judge. They contend that his opposition
to the State's motion for costs and his filing of his own motion
for reconsideration of the cost award should constitute waiver.
Staso makes no argument regarding his continuing to appear before
Judge Woodward after filing his Notice of Change of Judge. But
again, until his motion to disqualify was ruled on, he could not
have known whether she was the permanently assigned judge.
Therefore, Staso's repeated appearances before Judge Woodward do
not constitute waiver. See Dean, 681 P.2d at 324; Tunley, 631
P.2d at 73.
The superior court's ruling that Staso had exhausted
his single right to peremptorily disqualify a judge in this case
is REVERSED. A refiled suit which is assigned a new docket
number is distinct from the prior case and gives rise to the
right to a new peremptory disqualification under Civil Rule 42.
Public policy against judge shopping is not compromised by this
construction. The sanctions provided for in Civil Rule 42(d) and
Civil Rule 16.1(g) are sufficient to deter judge shopping. Staso
did not waive his right to disqualify the judge assigned to
preside over the case at bar because his actions do not fall
within the ambit of Civil Rule 42(c)(4).
1 We have omitted a discussion of the factual background
in the case because it has no relevance to the question presented
in the petition.
2 Again, we have omitted a discussion of the reasons for
denying Staso's motions, because they have no relevance to the
question presented in this petition.
3 Staso did not oppose the State's motions. He alleges
that these motions were granted before the time for opposition
4 It is reasonable to assume that litigants would have
questions such as, "would a refiled suit which is not exactly the
same as the dismissed case, because it includes some new
theories, be a new `action'?", or "would a suit with identical
pleadings which is filed in a different judicial district be a
new `action'?", or "how different must the new pleadings be to
constitute a new `action'?"
5 Thus, although the parties question whether the right
created by AS 22.20.022 is substantive or procedural, we need not
address that issue to resolve the determinative question
presented in this petition.
6 Alaska Rule of Civil Procedure 42(c) only refers to an
"action"and not a "proceeding."
7 See also Sebring v. Colver, 649 P.2d 932, 935 (Alaska
1982) (holding that where a new trial has been granted, the
parties have waived their right to disqualify peremptorily the
judge who presided over the first trial because the new trial is
not a new proceeding); Priest v. Lindig, 591 P.2d 1299, 1301
(Alaska 1975) (holding that at a trial on remand a party waived
her right to disqualify peremptorily the judge who actually heard
the original case); Kvasnikoff v. State, 535 P.2d 464, 466
(Alaska 1975) (holding that under Alaska Criminal Rule 25, a
peremptory disqualification of a judge will be deemed waived or
untimely as to later hearings which are part or a continuation of
the original proceedings); McKinnon v. State, 526 P.2d 18, 25
(Alaska 1974) (holding that although a probation revocation
hearing and a criminal prosecution may not be technically one and
the same action, as a practical matter the two proceedings
involve identical issues and should be considered one action for
AS 22.20.022(a) purposes); Weidner v. Superior Court Judicial
Dist., 715 P.2d 264, 269 (Alaska App. 1986) (holding that "[j]ust
as an individual cited for criminal contempt in connection with
the enforcement of orders in an ongoing proceeding is not
entitled to a new peremptory"disqualification of the trial
judge, a person faced with sanctions under Civil Rule 95(a) and
(b) is not entitled to an additional peremptory
8 See Webber, 706 P.2d at 330 (holding that the criminal
contempt proceeding was not a new action giving rise to a new
right to peremptory disqualification because "the action charging
Webber with criminal contempt was ancillary to and a continuation
of the underlying domestic action"); Sebring, 649 P.2d at 935
(holding that a party was not entitled to a new peremptory
disqualification right on retrial because the party "knowingly
participated in proceedings before Judge Carlson which concerned
the merits of the controversy"); Priest, 591 P.2d at 1301
(holding that "[w]hen this court on appeal reversed and remanded
the case for a new trial . . . . plaintiff's attempt to exercise
their peremptory disqualification as to Judge Van Hoomissen
expired at some time prior to the first trial"); McKinnon, 526
P.2d at 25.
9 These cases are also distinguishable because both cases
involve the application of Criminal Rule 25, not Civil Rule 42.
However, this difference is not determinative because as stated
Criminal Rule 25 is the criminal analog to Civil Rule 42.
10 Civil Rule 16.1(g) provides:
If a case dismissed under this rule is
filed again, the court may make such order
for the payment of costs of the case
previously dismissed as it may deem proper,
and may stay the proceedings in the case
until the party has complied with the order.
Similarly, Civil Rule 41(d) provides:
If a plaintiff who has once dismissed an
action in any court commences an action based
upon or including the same claim against the
same defendant, the court may make such order
for the payment of costs of the action
previously dismissed as it may deem proper
and may stay the proceedings in the action
until the plaintiff has complied with the
11 In prior cases this court has addressed the dangers of
judge shopping which can be avoided by prohibiting parties from
peremptorily disqualifying a judge once they have tasted the
judges rulings. See Sebring, 649 P.2d at 935; Kodiak Island
Borough v. Large, 622 P.2d 440, 444 (Alaska 1981).