Hickmann v. Ray ( 1994 )

PROCEDURAL HISTORY & FACTS

HENDERSON, Justice.

Carl, Beth, and Brian P. Hickmann (collectively “Hickmanns”) commenced a rescission action against a group of defendants, which included attorney Steven M. Christensen, who at one time represented the other defendants in this action. The Honorable Warren Johnson, Presiding Judge of the Eighth Judicial Circuit, set trial for September 9-10, 1993. Less than a month before trial, on August 13, 1993, Governor Walter D. Miller appointed Christensen as a judge for the Eighth Judicial Circuit, to be sworn into office November 1, 1993.

Because Christensen was to serve with Judge Johnson in that circuit, Hickmanns informally requested Judge Johnson to disqualify himself from the case. Judge Johnson denied the request stating that his only contact with Christensen was that of judge and practicing attorney.

Hickmanns then prepared a formal affidavit requesting a change in judge. Meanwhile, Christensen withdrew his nomination to the judicial appointment. Per SDCL 15-12-32, when the disqualification of a presiding circuit court judge is sought, the senior judge of the circuit — in this case, the Honorable Scott Moses — reviews the affidavit for disqualification. On September 8, 1993, Judge Moses rejected the Affidavit because it had not been timely filed. Hence, Judge Johnson presided over the trial.

Hickmanns appeal the following issues:

I. Did Judge Johnson abuse his discretion by not recusing himself from the case when one of the defendants was appointed to his judicial staff?

II. Did Judge Moses err in finding that the affidavit for change of judge was not timely filed?

III. Did the trial court abuse its discretion in referring this matter to another judge?

Finding that Judge Johnson did not abuse his discretion by presiding over this case, we affirm under Issue I and do not address the remaining issues.

DECISION

Hickmanns, via SDCL 15-12-21.1, informally requested that Judge Johnson recuse himself due to defendant Christensen’s appointment to serve on the bench with Judge Johnson. Although Canon 2 of the South Dakota Code of Judicial Conduct states, “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities,” the decision to preside over a case is addressed to the sound discretion of the trial judge. State v. Lohnes, 432 N.W.2d 77, 83 (S.D.1988). The judge is entitled to consult his own mind and he, perhaps better than anyone else, knows whether or not he can give a party a fair and impartial trial in every way. Tri-State Refining v. Apaloosa Co., 452 N.W.2d 104, 107 (S.D.1990).

Christensen was scheduled to be sworn in as a circuit judge on November 1, 1993, nearly two months after trial was scheduled to end. When asked to disqualify himself based on Christensen’s pending judgeship, Judge Johnson considered the request and concluded that he could be fair and impartial in presiding over this case. Nevertheless, Christensen declined the appointment prior to trial, thus eliminating the rationale behind the disqualification request and any alleged improprieties. We agree that Judge Johnson did not abuse his discretion by presiding over this case.

Affirmed.

SABERS and AMUNDSON, JJ., concur. MILLER, C.J., and WUEST, J., concur in result.