Chisholm v. State, 924 N.W.2d 127

Background

Rodney Chisholm, convicted of murder in 2011 and sentenced to 30 years, filed a successive application for post-conviction relief claiming newly discovered evidence.
He simultaneously filed (1) a peremptory demand for a change of judge under N.D.C.C. § 29-15-21, (2) a motion to recuse Judge Donald Hager for bias, (3) a motion to compel discovery, and (4) a request for court‑appointed counsel.
Acting presiding Judge Lolita Hartl‑Romanick denied the peremptory demand and also ruled on the recusal request; Judge Hager later denied the motion to compel, denied appointed counsel, and summarily dismissed the post‑conviction application.
Chisholm appealed the summary dismissal, denial of discovery, denial of counsel, and denial of the change of judge request.
The Supreme Court considered whether successive post‑conviction applications constitute a continuation of the underlying criminal action for purposes of a peremptory change of judge and whether the recusal motion had to be decided by the assigned judge.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Chisholm was entitled to a peremptory change of judge under N.D.C.C. § 29‑15‑21	§ 29‑15‑21 permits peremptory disqualification of the assigned judge for a new civil case number	Successive post‑conviction actions continue the underlying proceeding, so the assigned judge had previously ruled and § 29‑15‑21 is inapplicable	Denied — successive post‑conviction applications are a continuation of the underlying action; peremptory demand properly denied
Whether the recusal request for bias should have been decided by a different judge	Judge Hager was biased and should be recused; Chisholm included bias allegations	Recusal under bias is distinct from a peremptory demand and may be handled by the presiding judge	Reversed — recusal for bias is not governed by § 29‑15‑21 and must be decided by the assigned judge; remanded for that determination
Whether the acting presiding judge properly decided the peremptory demand and the bias motion	Acting presiding judge had authority to consider peremptory demands under § 29‑15‑21(6)	Peremptory demand could be decided by acting presiding judge, but bias motion should remain with assigned judge	Affirmed in part and reversed in part — acting judge properly decided peremptory demand; acting judge erred in deciding the bias recusal motion
Whether remaining relief (motion to compel, appointment of counsel, summary dismissal) requires reconsideration	These rulings depended on judge assignment and recusal outcome and thus are properly considered only after recusal is resolved	State urged affirmance of procedural rulings	Remanded — after assigned judge rules on recusal, district court must reconsider discovery, counsel request, and summary dismissal

Key Cases Cited

State v. Chisholm, 2012 ND 147, 818 N.W.2d 707 (prior criminal conviction affirmed)
Gray v. Berg, 2015 ND 203, 868 N.W.2d 378 (distinguishing peremptory change from bias‑based recusal)
Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644 (peremptory challenge entitlement without alleging bias)
Eagleman v. State, 2016 ND 54, 877 N.W.2d 1 (substance over label for change‑of‑judge motions)
Grasser v. Grasser, 2018 ND 85, 909 N.W.2d 99 (motion labeled under § 29‑15‑21 may be viewed as recusal)
Estate of Ketterling, 515 N.W.2d 158 (informal and formal probate treated as single proceeding)
Falcon v. State, 1997 ND 200, 570 N.W.2d 719 (post‑conviction is continuation of criminal case for § 29‑15‑21 purposes)
Schweitzer v. Mattingley, 2016 ND 231, 887 N.W.2d 541 (assigned judge retains duty to decide recusal motions)
Rath v. Rath, 2016 ND 46, 876 N.W.2d 474 (judicial duty not to recuse absent required circumstances)