In re the Marriage of Muhammad ( 2005 )

¶20 (concurring in part, dissenting in part) — I agree with the majority of this court that the Court of Appeals should be reversed and the matter remanded to the trial court for a new trial on the issue of property division.

Alexander, C.J.

¶21 I disagree, however, with the majority’s instruction to the Pierce County Superior Court to assign the case to “a new trial judge” for the purpose “of avoiding any appearance of unfairness or bias.” Majority at 807. The trial judge who presided over this marriage dissolution proceeding is a veteran judge who is well respected in his jurisdiction and statewide. In my view, he is fully capable of doing what most trial judges have to do from time to time and that is to consider a case anew on remand after his or her decision in the case has been reversed in whole or in part by an appellate court. Disqualification of a trial judge on remand should be ordered only in extreme cases where there are indications in the record that the trial judge is unwilling or unable to fairly consider the case on remand. There is no such indication in the record before us and, therefore, there should be no change of judge at the new trial.

C. Johnson, J., concurs with Alexander, C.J.