*1 215 P.2d Greg BOWER, County H. Ada Pros
ecuting Attorney, Plaintiff-Ap
pellant-Cross Respondent, MORDEN, Thomas R.
Honorable
Magistrate Judge, Defendant-
Respondent-Cross Appellant.
No. 21082. Idaho,
Supreme Court of
Boise, May 1994 Term.
Aug. 1994. *2 25(a) may under limited
cause due party to the number of cases which right against exercises not, judge. We hold that it and that in prohibition this case writs of man- date are available to enforce the as remedies right. - - - Appellant Respon-
Plaintiff Cross dent, Bower, Greg County H. Ada Prosecut- Attorney (Bower), appeals from a district ruling denying request for a of court his writ prevent mandate and writ of Defendant-Respondent-Cross-Appellant, Morden, Magistrate Honorable Thomas R. Morden), Judge (Judge denying from Bow- disqualify Judge motions to er’s Morden. appeals declaratory Bower also from the judgment ruling of court the district prospective rights parties. declared Judge from the cross-appeals Morden declar- atory judgment ruling.
BACKGROUND AND PRIOR PROCEEDINGS 1993, deputy prose- During the summer of cuting attorneys employed by Bower ex- pressed Judge their dissatisfaction with Mor- Bower, perception based den on Judge Morden was biased office prosecutor. August In policy having deputies instituted his file motions for automatic pursuant Morden in all initially criminal cases. Morden Bower, Greg Atty., Ada County H. Pros. motions, ultimately granted began but Colaianni, and Cary County B. Deputy Ada issuing identical blanket denials Bower’s Boise, Atty., Cary Pros. B. appellant. case, Judge in all In each cases. argued. Colaianni stated that motion was denied Morden because, 25(a), pursuant to it had been EchoHawk, Gen., Larry Atty. David G. “hindering, delay- purpose for the High, Gen., Deputy Atty. F. and Steven obstructing jus- ing, or the administration Seanlin, Gen., Boise, Deputy Atty. for re- tice.” spondent. argued. F. Steven Seanlin sought writ of mandate writ MeDEVITT, Chief Justice. prohibition against Judge Morden. After we if preliminary proceedings,1 this case are asked to decide a trial was held on judicial disqualification request the right to without Bower’s for the writs. Initially, Judge restraining*him denying 1. an alterna- future motions and Schroeder hearing. requiring Judge tive writ of mandate Morden set the matter for show cause disqualify Judge then moved Schroe- vacate his earlier orders and a writ of perceived trial, deputies cases for
At testi- den future “selected several they fied that believed bias.” County
biased. The Ada Public Defender a private attorney both testified that II *3 they thought Judge profes- Morden had a rul- sional demeanor and delivered consistent ANALYSIS ings. Other evidence at trial established Prohibi- Mandate And A. The Writs Of Judge had well one hun- Morden denied over Appropriate Remedies Be- tion Are ini- disqualification dred since Bower Ruling For Au- On A Motion cause policy tiated his and that Bower had not Disqualification Does Not sought rulings. tomatic appeal any of from these Discretionary Decision Additionally, sought Involve A Bower had not a writ Adequate And Had Reme- or writ of mandate with reference No grant dy disqualification to a to motion At refusal Available Law. any particular pending in Al- criminal case. 25(a) provides, Rule in rel- Idaho Criminal though there was evidence some adminis- part, evant as follows: delay by trative mo- caused the number of (a) Disqualification judge without cause. reassignments during tions and the attendant actions, parties In all criminal the shall those periods when the motions had been disqualification to each have the one (before deny- Judge began magistrate, the or without cause of motions), ing the there was no evidence fol- except provided, as herein under the any disqual-
which established that
procedures:
lowing
conditions
caused,
cause, delay
ification motion
or would
normally
(1)
to
disproportionate
disqualify.
associated
crimi-
Motion to
reassignment
with
of an
after
mag-
individual case
or the
nal action in the district court
disqualification
thereof,
motion.
any party
division
istrate’s
(1)
by
judge magistrate
disqualify
or
one
The
request
the
for
district court denied
filing a
for
without
writs, concluding
the
that Bower’s blanket
cause,
stating
require
which shall
hinder,
designed
delay
motions were
to
or
therefor,
granting
any grounds
justice
obstruct the administration
because
of such motion for
without
they
designed
influence Judge
were
to
Mor-
cause,
timely,
granted.
if
Each
shall be
rulings.
den’s
The
held
district court also
felony prosecution
shall have
party
that Bower was
to
in the
not entitled
relief
(1) disqualification without cause under
one
prohibi-
form of a writ of
or writ
mandate
magistrate appointed to
this Rule as to the
tion,
failed
both because he had
to exhaust
preliminary hearing
and another
hear
his remedies at law and
writs
because the
to
disqualification without cause as
the dis-
appropriate
were not
to constrain a discre-
the trial of
appointed
trict
to hear
tionary
deciding
function such
or
whether
action. A motion
for
brought
not a
motion was
not made under this
without cause shall
hinder, delay or obstruct the administration
hinder, delay
or
the ad-
Rule
obstruct
justice.
justice.
ministration of
further
district court
concluded
(2)
filing.
Judge
by
Time for
A motion
dis-
Morden had abused his discretion
must be filed
responding
qualification
without cause
blanket motions with
(7) days after service
considering
blanket denial instead of
each
not later than seven
setting the action for
independently.
case
en-
of a written notice
district court
conference,
conference, pre-trial
tri-
declaratory
allowing
tered
judgment
status
hearing
on
first
file motions
Mor-
al or
contested
and,
recusals,
allowing
nary
jury
hearings,
denial in
trials.
der
after several
the case was
but
However,
cross-appeal
assigned
appeal
ultimately
Fuller
this Court.
because
alternative writ so that
this case are both
the final
Fuller modified the
court,
rulings
obligated
grant
are not at
the mo-
district
these earlier
appeal.
prelimi-
in this
tions when
in court trials and
issue
(14)
person
motion,
application of
days
affidavit on the
or not later than fourteen
beneficially
specifying
interested.
of a written notice
after service
magistrate
presiding judge or
who the
I.C.
7-402.
first;
be,
the action will
whichever occurs
counterpart
is the
The writ of
be filed before the
and such motion must
It arrests
writ of mandate.
conference, a
of a status
commencement
tribunal, corporation,
proceedings of
conference,
proceed-
pre-trial
a contested
proceedings
person,
board or
when
or trial
the action.
jurisdiction
are without or
excess
tribunal,
per-
or
corporation, board
of such
the rule
Prior to its amendment
son.
language
prohibits
did not contain the
*4
§ 7-401.
I.C.
“hinder,
filing
delay or obstruct
a motion to
justice.”
That
lan-
the administration
consistently
that
held
This
has
Court
corollary
guage
adopted
civil
was
(and
counterpart,
mandate
“writs of
40(d)(1).
rule,
This
has never
I.R.C.P.
Court
per-
compel the
prohibition) will not issue to
decide,
upon
under
before been called
discretionary
purely
function.”
formance of a
rule,
488,
criminal
whether a
either the civil or
Sandpoint, 110 Idaho
Bopp
City
v.
may
(citations
prohibition
(1986)
of mandate
writ of
or writ
1260,
490,
P.2d
1262
716
against
denies a motion for
omitted).
issue
a
who
“hin-
being
brought
one
previously approved the
has
This Court
der,
delay or obstruct
the administration
refusing to dis-
against
judges
use of writs
justice.”
disqualify was not
the refusal to
qualify when
discretionary decision.
predicated on a
statutory authority for a writ of man-
The
Featherstone,
Idaho
v.
48
Hultner-Wallner
date,
7-302, provides:
§
I.C.
507,
(1929),
that a
42
this Court said
283 P.
any
except a
may
by
It
be
court
issued
appropriate mech-
prohibition was an
writ of
court,
justice’s
probate
any
inferior
or
judge refused to
anism when a
tribunal,
person,
corporation, board or
allegation
despite
party’s
a
himself for cause
compel
performance of an act which
in the outcome
an interest
that the
had
enjoins
duty result-
especially
as a
law
by
personal stock-
litigation
virtue of
station;
office,
or
or to
ing from an
trust
corporation
interests
holdings in a
whose
party to the use
compel the admission of a
by
litigation.
affected
might have been
enjoyment of a
or office
and the
would not
that the writ
concluded
Court
entitled,
he
and from which
which he is
because
judge’s discretion
interfere with the
tri-
unlawfully precluded by such inferior
in the matter” and was
had no discretion
“he
bunal,
person.
corporation, board or
re-
of law without
disqualified as a matter
subjective
about
judge’s
beliefs
gard to the
in limited circum-
The writ is
available
Id.,
512,
impartial.
at
ability to remain
his
stances:
Likewise, in Price v. Feath-
43-43.
283 P. at
in all cases where
The writ must be issued
(1942),
erstone,
P.2d 853
130
64 Idaho
speedy
adequate
plain,
not a
and
there is
a
original proceeding
in
issued
this Court
It
remedy
ordinary
in
course of law.
de-
judge who had
writ of review
affidavit,
appli-
upon
on the
issued
must be
because he
for
nied a motion
beneficially interested.
party
cation of the
disqualify was not avail-
thought motion to
proceeding.
divorce modification
able
is sub-
writ of
I.C.
7-303. The
orders, not
judge’s
vacated the
This Court
scope
limitation:
stantially
similar both
discretion, but
he had abused his
because
except
may
by
court
It
be issued
law.
a matter of
he had erred as
because
courts,
an inferior
justice’s
probate or
Price,
317-18,
219 Bearshield, (1987). Cf., 104 “hinder, delay or brought was (1983) (holding on P.2d 548 justice” was a Idaho the administration obstruct disagree. appeal There no denial of discretionary We act. direct 40(d)(1) upon brought under I.R.C.P. discretionary act involved motion 25(a)(1) holding reversing mo- court’s because lower improper, motion under filed). timely rule must How- conformity tion motion was not that the right. appeal last ever, as a matter direct fact the mere 25(a)(1) condemns necessarily sentence of I.C.R. establish does available filing disqualify in order to of a motion to remedy in this case. adequate it is an “hinder, delay or obstruct administration is no discretion justice” supply basis for an Because there does judge against grant deny a motion
exercise discretion or 25(a), adequate is made. no whom and because under remedy was available to appellate at law The next issue we must decide is whether Bower, writs of mandate we hold speedy “plain, or not Bower had ade- against Judge issue quate remedy” other than the writs. available for dis denying hold he did We not. *5 question now to the qualification. We turn finding a The district court made factual whether, disqualifi number of light of the process adequate was as a appellate that the Bower, writs by filed motions cation remedy rulings Judge for the adverse issue. should initially given Morden that had rise Bow- perception Morden biased er’s that was Disqualification Under Motions For However, B. against prosecution. this find- 25(a) Be Irre- Must Granted I.C.R. by the district court frames the issue Party spective A Of How Often incorrectly. analysis appropriate- Our A Disqualify Particular Moves To availability ness of the writs is focused on the Judge. remedy allegedly improper of a for the denial availability disqualification, of the not the of a case, dispute no this there remedy in previous cases that have con- timely motions were each individual Bower’s asserting tributed to Bower’s motivation for 25(a)(1). conformity I.C.R. filed with disqualification subsequent motions in motion, Thus, disqualification if viewed each cases. alone, granted. Judge would have specifically it to be an finding While not disqualifi urges the number of seeking adequate remedy alternative by against Judge motions filed cation writs, the court did that Bower district note Morden, aggregate, converted viewed interlocutory had never availed of an himself conforming non-con motions to appeal disqualification of the denial of subject hold forming to denial. We motions by permission. motion We believe dis- it did not. finding point trict on this is incorrect. court’s 12(a) permission application I.A.R. limits ground upon single interlocutory appeal an in criminal to take had abused court found that Bower district Moreover, the denial cases the defendant. 25(a) Bower’s its conclusion that was a of a final attempt improper were an blanket motions appeal purposes under I.A.R. order rulings on Judge Morden’s future influence 11(c). Therefore, interlocutory appeal con do this of law. We not embrace issues remedy to Bower. available as clusion. fu Morden’s course, ap- not have affected a direct could Of could take because, if Bow rulings of law ture on issues peal of the motion. denial granted, disqualification motions were appeal er’s has addressed direct This Court rulings by law no would be more disqualification motion there of an automatic denial 25(a) Bower was a in cases where appeal Judge Morden pursuant to I.C.R. on direct filed party. 739 P.2d Schaffer, 112 Idaho SILAK, suggests Justice, BISTLINE, joined that Bower’s by Justice, dissenting. usurpation blanket judi motions are a of the ciary’s power. Pointing to Article 2 of today compellingly Court’s decision Constitution, the Idaho 25(a) Morden con why demonstrates Idaho Criminal Rule that, substantially tends needs to be Supreme because the revised. As it is Court ad presently today by interpreted written and is supervises ministers and judiciary pursu 25(a) Court, readily susceptible mandate, ant to constitutional Bower’s blan any party litigates abuse who with ket motions exclusively judicial invade that great frequency judicial single in a district. argues function. He the number of separately my I write explain both to dis- Bower’s motions removing resulted in him agreements reasoning, Court’s entirely from the criminal docket. This suggest that the rule be rewritten. clearly Court contemplated disqualification portion pro- The relevant of I.C.R. as a promulgating matter of vides as “A disqualifica- follows: motion for 25(a)(1) without language limiting the tion without cause shall not be made under party may number of times a invoke the rule hinder, delay this Rule to or obstruct Therefore, as single judge. Bow justice.” administration of The Court holds er’s motions cause no divestiture of this nothing this more than Court’s power. constitutional cautionary language. I do not believe that to Rather, be the case. language believe the disagree We also with the district very important safety was included as a valve court’s conclusion that prevent exploitation Morden’s blan process. ket denials were an abuse of discretion be cause, above, explained no discretion explanation why The Court’s as to no dis *6 ought to have been involved on cretionary ruling upon act is involved in 25(a) However,
Bower’s motions. supported by we affirm motion under the I.C.R. is reasoning. circular The Court states that no district court’s conclusion that Mor judicial implicated “any discretion is because den’s denial of imper Bower’s motions was brought conformity with the rule missible on.the alternative basis that inher right.” must be as a matter of Of right disqualification ent in the to as a matter course, argument upon that revolves itself right prohibition is the of a blanket denial how, when examined to discern in the first of such motions. instance, any determination that a motion is “hinder, brought delay not to or obstruct justice” administration of could ever take CONCLUSION 25(a) place. plain language The of I.C.R. judgment The denying of the district court necessarily requires judge that the involved Bower’s motion to issue the writs of mandate disqualification decide or not whether mo and is being reversed. The writ of purpose. tion is filed for a forbidden definition, By decision-making process directing Judge mandate grant Morden to Therefore, implicates judicial discretion. disqualify hereby the motions to is issued. here the Court should have concluded declaratory judgment to affirmed the writs of mandate and were prohibits Judge extent that it Morden from “discretionary unavailable on the of the basis denying disqualification Bower’s motions and City exception. Bopp act” See v. Sand portions limiting right those file 488, 490, point, 110 Idaho 716 P.2d disqualification motions are reversed. No (1986) (“writs (and of mandate appeal. costs on counterpart, prohibition) will not issue compel performance purely of a discre function”).2 TROUT, JJ., tionary JOHNSON and concur. 25(a). disqualification
2. Because I
the writs should not
believe
issue
decision under
function,
Nevertheless,
against discretionary
unnecessary
agree
it is
I do
that none
Court
my analysis
to determine whether Bower has
exists for Bower and I would
advocate revis-
25(a)
adequate appellate remedy
peremptory
an
for review of a
to create one. The
acceptable to
rulings
become less
Because the Court has decided that
should
25(a)
Morden,
disqualification
under I.C.R.
Bower than those
absolute,
proceed
provide prop-
it does not
power
redirect his blanket motions
has the
guide
deciding
er criteria to
judge from the
and
remove an
disqualify
whether a motion to
exposes
possibility
That
criminal bench.
“hinder, delay or obstruct the administration
underlying
separation
powers
violation
justice.”
dissenting
In
conclu-
dispute.
this entire
sion, I offer a framework that I
is the
believe
disagree
I
conclusion that
with
Court’s
25(a)
proper
interpretation of I.C.R.
invasion
are not an
Bower’s blanket motions
ought
explicitly
through
to be made
so
5, § 2 of
Article
judiciary’s power.
revision of the rule.
invest this Court
Idaho Constitution does
agree
I
with the Court that Bower’s mo-
and su-
power
with
to administer
exclusive
tions
attempt
were not an
to influence
Therefore,
judiciary.
Bower is
pervise rulings
Morden’s future
on issues of law be-
disqual-
constitutionally
to use
authorized
cause,
granted, Judge
if
Morden would be
number so
motions
ification
removed from all of Bower’s cases. Howev-
equivalent
reassign-
of a
effect the functional
er,
beyond
point
we must look
believe
(an objective
magistrate
ment of a
systemic damage
to measure the
that “blan-
conceded).3
openly
ket”
motions such as these
considerations,
On
of the above
can cause.
the basis
have concluded that blanket
Court should
City
In
City
Court
Tuc-
type are
of this
motions
son,
(1986),
150 Ariz.
tion P.2d 252 speculation dard would be mere as to wheth- CAMPBELL, A. Claimant- Wade type particular er a case was more of the Respondent, him from than Bower wanted removed any other. I believe a more balanced construction OF BOARD BONNEVILLE COUNTY disquali-
would be one that allowed Bower to COMMISSIONERS, Employer, fy Judge many Morden from as cases as he Defendant-Appellant, chooses, long grossly dispro- so as it is not portionate to the number of motions filed magistrate judges. other Such a Idaho, Department of disqualify standard would allow Bower to Employment, Defendant. potential improp- without erly influencing magistrate judges. other No. 20494. Additionally, it would also constrain unlimit- Idaho, Supreme Court of ed to the extent that a liti- Idaho, May Term. Eastern gant filing disqualification motions should re- judge reassignment judge ap- ceive a as Aug. 1994. proximately many judge times as the disqualified by litigant from other cases. prac- Morden’s also conclude issuing
tice of blanket denials without
type hearing4 an abuse of discretion
because he failed to utilize discretion
denying all of motions without consider-
ing whether under Bower was
entitled to him from some cases.
By suggest this I do not mean to
Morden must rule in a vacuum such that he beyond
cannot look an individual motion and disqualification pattern.
examine Bower’s disquali-
When a is faced with blanket motions,
fication the exercise of discretion larger
occurs in a context than the individual
motion, for the should evaluate the
pattern upon motions and act blanket *8 collectively hearing.
them after a At that deny
point, judge ought tó be able
enough of the motions to maintain or restore
approximate equilibrium to the administra- assignment of cases.
tive reasons, I foregoing
For would affirm part, revers-
the order of the district court
ing only portions indicated herein. those hearing the court or type that the issue of abuse is raised of abbreviated 4. The to some recognition necessarily corresponds party, opportunity heard opposing to be some under I.C.R. on a appropriate. discretionary point function. At the is a