The STATE of Idaho, Plaintiff-Respondent, v. Christopher BEARSHIELD, aka Raymond Hoover, Defendant-Appellant.
No. 13550.
Supreme Court of Idaho.
April 27, 1983.
662 P.2d 548
We stated in Alber v. Alber, supra, 93 Idaho at 758, 472 P.2d at 324, and reiterated in Miller v. Miller, 96 Idaho 10, 523 P.2d 827 (1974), “The conduct and the misrepresentations of a parent cannot militate against the interest of a child which is of paramount consideration.” In Miller, supra, 96 Idaho at 11, 523 P.2d at 828, “[a] medical report was introduced in the record which established that the appellant was not the father of the child.” Nevertheless, over the protestations of the mother of the child, its custody was awarded to the former husband of the mother.
I can readily visualize some results of today‘s majority decision which I for one would not perceive as advances in our jurisprudence. Among the parade of horribles, I see husbands in divorce cases disclaiming parentage of children born during the marriage and demanding that medical technology settle the issue.
I would remand the cause to the trial court for trial on the issue of Stephenson‘s parentage of the child. He is clearly presumptively the father of the child, regardless of the previous divorce negotiations entered into by him and his then wife. Only if the presumption is adequately rebutted by clear and convincing evidence should the trial court conclude that Stephenson is not the father of the child. Only thereafter would I hold that there is any issue as to Crain‘s paternity of the child and only in that phase of the triаl would I conclude that there is any relevance to any evidence of Crain‘s parentage of the child.
Last, but not least, I would order the trial court to appoint a guardian ad litem for the child, which person should be an officer of the court and thoroughly detached from any of thе other parties to the action, and hence without bias or prejudice but serving only the best interests of the child.
David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.
BISTLINE, Justice.
I.
Christopher Bearshield was charged with murder in the first degree by an information filed on February 21, 1973, in connection with the shooting dеath of Harry Walks-On-Top. Bearshield appeared with counsel and entered a plea of not guilty to the charge. Later Bearshield, through his attorney, entered a plea of guilty to the crime of murder in the second degree. The court, the Honorable John Maynard presiding, accepted the plea. Later, at sentencing, Bearshield testified that he had not intended to kill Walks-On-Top, in view of which Judge Maynard questioned Bearshield as to the voluntariness of his plea. Being satisfied that it was voluntary, the court on March 30, 1973, sentenced Bearshield to an indeterminate term not tо exceed twenty-five years in the custody of the Idaho Board of Corrections. No appeal was taken.
On August 25, 1977, Bearshield filed a pro se application for post-conviction relief. Retained counsel filed an appearance as Bearshield‘s counsel on April 30, 1979. Thereafter counsel filed an amended petition on May 18, 1979. At this time a motion for a change of judge was also filed. The prosecution interposed no response on the motion, and it was not passed upon until the amended petition came on to be heard before Judge Maynard on June 13, 1979. The motion was rather summarily denied, as was Bearshield‘s petition for post-conviction relief. Bearshield appeals.
II.
A threshold challenge raised by Bearshield is whether Judge Maynard erred in not accepting the disqualification, which ruling was based upon the stated reason: “Well, the motion wasn‘t timely made in that the Court certainly has acted in this case from its very inception and I think the only way the matter could be shown now is by a showing of some actual bias, so the motion is denied.” Tr., p. 3. This disposition of the motion was the first contested proceeding in Bearshield‘s action for post-conviction relief.
A party to an action is entitled to make one disqualification without cause pursuant to
Judge Maynard‘s stаted reason for not honoring the disqualification, that he had been in the case from its inception, can only be understood as founded upon his view that the post-conviction proceeding was a continuation of the criminal action at which he had presided. It is clear that he had not been required to nor did he pass upon any contested motions prior to the filing of the disqualification motion by Bearshield‘s counsel. We believe, therefore, that he erred in continuing to preside in the post-conviction relief action.
As was noted in Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969): “An application for post-conviсtion relief is a special proceeding, civil in nature.
It has been suggested that Bearshield‘s motion for a change of judge was not timely filed because it was not filed within fivе days after he received notice of the hearing on the first contested motion in the case, citing
On February 15, 1979, Bearshield filed pro se a motion for appointment of counsel and a motion fоr leave to supplement his August 25, 1977, application for post-conviction relief. On March 20, 1979, the court ordered a hearing set for April 25, 1979. It does not appear from the record that this order was served on the then uncounseled Bearshield. The same order provided that Bearshield “bе delivered to the Sheriff of Nez Perce County to be held for said hearing,” and Bearshield was so made to appear. Tr., p. 23. Bearshield of course, was not exactly a free agent, being in custody of the Idaho State Correctional Institution in Boise. Although there is no record of counsеl being appointed for Bearshield, the court minutes reflect that Owen L. Knowlton appeared for him at the hearing on April 25 at which time the case was continued until May 2, 1979. On May 1, 1979, a notice of substitution of counsel was filed with the court, stating that the firm of Rapaich and Knutson had been retained by Bеarshield. No hearing was had on May 2, 1979. Counsel filed Bearshield‘s amended application for post-conviction relief and motion for a change of judge on May 18, 1979. The first notice of hearing appears to have been served upon Bearshield or his counsel on May 30, 1979—after Beаrshield‘s motion for a change of judge was filed. This notice was of a motion to strike Bearshield‘s amended petition for post-conviction relief and it stated that the motion would be heard on June 6, 1979. Again, however, it appears that no hearing was held on the date scheduled. A hearing was finаlly held on June 13, 1979, for which no notice appears in the record. It was at this hearing that the court preliminarily heard all pending motions.
Accordingly, we reverse the final judgment, and remand to the district court with directions that the cause be assigned to another judge.
DONALDSON, C.J., and McFADDEN, J. (Retired), concur.
BAKES, Justice, dissenting:
I disagree with the majority‘s handling of the disqualification issue. The majority notes, quite correctly, that a party is entitled to one automatic disqualification, and then proceeds on the assumption that the motion in the present case was a motion for automatic disqualification. The majority then reverses the trial judge‘s ruling on the timeliness of the motion. I feel the majority is incorrect in (1) treating this motiоn as a motion for automatic disqualification, and (2) treating the motion as timely filed.
The defendant filed his pro se application for post-conviction relief on August 25, 1977. The prosecutor then filed an answer to the application on September 20, 1977. The defendant filed a “traversе” (which is merely a response to the state‘s answer) on October 3, 1977. No notice of hearing was filed with any of these documents, although the defendant, in his “traverse“, did request that a hearing be set.
On February 15, 1979, the defendant, still pro se, filed a motion for leave to supplement his application. Also on February 15, 1979, the defendant filed a motion for appointment of counsel and a motion for production of documents.
On March 20, 1979, the trial judge ordered the case set for hearing, the order reading:
“The petitioner having filed a petition for post conviction relief which petition raises an issue of fact regarding the voluntariness of his plea upon his allegation that he was not afforded effective representation by his attorney;
“IT IS THEREFORE ORDERED that a hearing upon the factual issue be held on Wednesday, the 25th day of April, 1979.”
On April 25, 1979, the defendant appeared in court with сounsel and asked for and received a continuance. The court ordered the matter continued until May 2, 1979. Substitution of counsel was made on May 1, 1979. Subsequently, on May 18, 1979, the defendant filed his “motion for change of judge,” citing
On June 13, 1979, a hearing was held on several motions filed by the defendant, including the “motion for change of judge.” The full extent of the discussion on the motion for change of judge is as follows:
“MR. RAPAICH: Please, sir. We would respectfully request that the motion of disqualification be heard first, Your Honor, so that we will have that out of the way one way or the other.
“THE COURT: All right, go right ahead.
“MR. RAPAICH: I think that simply requires nothing more than the ruling by the Court. The body of the motion states the grounds for it.
“THE COURT: Well, the motion wasn‘t timely made in that the Court certainly has acted in this case from its very incep
The majority states that the trial judge treated the motion as calling for an automatic disqualification. There is no support for that in the record. First, the defendant‘s motion cited only
“RULE 40(d)(1). FIRST DISQUALIFICATION OF JUDGE.—In any action in the district court or the magistrates division thereof, any party may disqualify one (1) judge, without cause, by filing a motion of disqualification which shall not state any grounds therefore [therefor] other than this rule of automatic disqualification. Such motion must be made not later than 5 days after service of a notice setting the action for trial, pre-trial, or hearing on the first contested motion, and must be made before any contested proceeding in such action has been submitted for decision to the judge; ....” (Emphasis added.)
A reading of the text of that rule makes it clear that the trial judge could not have been treating the motion as one for automatic disqualification. First, the rule provides for automatic disqualification as a matter of right; thus, no actual bias need have been shown. Secondly, the rule specifically states that no grounds need be given. However, the motion for disqualification which the defendant filed was accompanied by an affidavit specifying the grounds, as provided by
Regardless of which rule the defendant filed under,
In any event, at the April 25, 1979, hearing, the judge, in open court, with the defendant and his counsel present, granted the defendant‘s counsel‘s motion for continuance and ordered the hearing reset for May 2, 1979. This was notice to the defendant that the matter had been set for hearing. It is thus clear that under either
SHEPARD, J., concurs.