*1 229, Stenberg, Stenberg v. 90 S.D. (1976). Deadwood,
Jerry Rachetto, plaintiff C. appellant. Costello, Porter, D. Carpenter Edward Bushnell, Hill, Heisterkamp Rapid City, & Ray, appellees Eagle Re- for defendants and HICKMANN, Hickmann, Beth Carl alty, and Christensen. Hickmann, Brian P. Plaintiffs and McCullen, Jeffrey Bangs, But- Appellants, G. Hurd of ler, Simmons, Foye Rapid City, & for defen- appellees dants and Conrad. RAY, Eagle Realty, Troy Timo- W. D/B/A Sylvia Conrad, Conrad, thy Monica J. & PROCEDURAL HISTORY FACTS Conrad, Ray and M. Connie Steven Christensen, HENDERSON, Appellees. Justice. Defendants and (collec- Beth, Carl, P. Brian Hickmann No. 18534. “Hickmanns”) tively commenced rescission
Supreme Court of South Dakota. defendants, against group which action Christensen, M. included Steven 22, Briefs March 1994. Considered on represented at one time the other defen- 6, Decided in this action. The Honorable Warren dants Johnson, Eighth Presiding Judi- Circuit, 9-10, set trial for cial Less than a month before 1993, D. Miller August Governor Walter appointed Christensen as Circuit, into Eighth Judicial to be sworn 1, 1993. office November was to Because Christensen serve circuit, in that Hickmanns Johnson requested Judge to dis- Johnson qualify himself from the case. only stating that his son denied was that of contact with Christensen attorney. practicing affida- prepared then a formal Hickmanns Mean- while, his nomination Christensen withdrew judicial appointment. Per presid- disqualification of a sought, senior ing circuit court Honor- the circuit —in this Moses—reviews able Scott disqualification. On rejected the Affidavit because Hence, Judge timely filed. had not been it presided the trial. appeal following issues: *2 80 trial, Judge
I. Did eliminating Johnson abuse his discre- to thus the rationale behind by recusing the disqualification request any alleged tion not himself from the and improprieties. agree Judge case when one of the We that defendants appointed judicial by presiding to son not abuse his staff? did his discretion over this case. Judge finding II. Did err in judge the affidavit for of Affirmed. not filed? AMUNDSON, JJ., SABERS and concur.
III. Did the trial court abuse its discre- in referring tion this matter an- to MILLER, C.J., WUEST, J., in and concur judge? result. Finding Judge Johnson did not abuse result). WUEST, (concurring in Justice by case, presiding his discretion we affirm Issue I do not the under and address Although by I concur in result the reached remaining issues. majority opinion, disagree the I must
the utilized the the rationale as basis for Judge decision. Whether Johnson abused DECISION his in discretion is not an issue and Hickmanns, 15-12-21.1, via SDCL infor- should not serve as a the affirming mally requested Judge Johnson recuse result. Because are required not in ap- himself due to defendant Christensen’s request either an informal or in an affidavit pointment to serve on the bench with judge, a of the better Although 2 Johnson. Canon of the South grounds affirming this result should be states, Dakota Code Judicial “A Conduct statutorily based in the mandated review judge ap- avoid impropriety shall and the the affidavit based on waiver and timeliness. pearance impropriety judge’s in all of the activities,” the preside decision to over a case provides step 15-12-21.1 the initial to the addressed sound discretion of the party must be taken a to seeks * Lohnes, judge. trial State v. 432 is, judge disqualified; have a party the (S.D.1988). judge 83 The is entitled to con- request. must first make an informal he, sult perhaps his own mind and better party making statute makes clear that the else, anyone knows or he reason, not give the need not the and give party impartial can a fair in and trial opposing party may request. not contest the every way. Refining Apaloosa Likewise, the give need not (S.D.1990). grant reason for either a or denial of the request.
Christensen was in scheduled be sworn 1, 1993, as a circuit denied, on November If the informal party the nearly months seeking two after trial was judge may scheduled the disqualify end. asked When himself affidavit with the clerk of courts. pending judgeship, based on Christensen’s 12-30. The form and contents of the affida- statute, Johnson considered the prescribed by including the he fair impartial concluded that could be necessary directive that it is not state Nevertheless, in presiding over this “ground case. or for the belief “fair reason” that a appointment prior Christensen declined the impartial trial” cannot had before the * letters, provides: apprised any 15-12-21.1 or be communications court, request. but cannot contest the If filing judge, Prior to an affidavit for judge magistrate grants party request, the the or his shall or the he re- who, quest judge the or in notify presiding judge, the ordi- shall forthwith course, nary preside hearing at the or assign the case to some other or disqualify He himself. shall not be magistrate. request, If the refuses the he reasons, required may to state his if he writing notify parties shall forthwith or letter, Informally by desires. communication, shall mean oral letter, attorneys. may Writing their include a dictating it into the record order, or dictation into the record. chambers; however, open op- court or posing parties copies should receive 1982). affi- This action was filed 15-12-26. The assigned “presiding had ruled on numerous is then reviewed davit or in absence or during the circuit court pendency litigation. of the motions judge sought to be disqualification as argued that waiver was judge of changed, eircuit[.]” the senior *3 special circum- applicable because of reviewing That 15-12-32. —in involving appointment a new stances case, Judge Moses—is review argument accepted Even if this affidavit; if that the “it is determined (which not), Judge correctly I do de- timely right that the affidavit timely affidavit was not termined is not has not been waived or the affidavit filed. This matter was scheduled for a trial defective, assign some legally otherwise the court on cir- of that circuit other 15-12-27(2)(a) provides in actions preside in such appropriate to cuit as is jury, set for trial the court without Thus, it was Moses’ aetion[.]” change for must filed affidavit (1) timeli- affidavit as to duty to review the days before the date set “not less five (3) (2) ness; waiver; legal defect. Applying compu- our for trial.” rules duty to review Judge Moses had no 15-6-6(a), time as tation for set out judge, or the affidavit determined had to determine days not filed within the five allowed denying abused discretion for statute. necessary. The —no by September been opinion should have filed and order reveal memorandum refuse it was not filed until Moses’ decision to the basis I affirm on this basis. filed. the affidavit was First, waived it is clear that Hickmanns MILLER, C.J., writing. joins special submitting judge by any right to a jurisdiction the court. 15- Co., 12-24; Fullmer Farm Ins. v. State (S.D.1994); N.W.2d Refin Apaloos ing Investment Co. v. 104, 108 (S.D.1990); In re Establish Electric
ing Territorial Boundaries Certain (S.D. S.D., 118, 120-21
Within