State v. Jacobson , 2008 N.D. LEXIS 71 ( 2008 )

MARING, Justice.

[¶ 1] Michael Jacobson appeals a district court criminal judgment. Jacobson was convicted of assault following a bench trial over which the Honorable Bruce B. Haskell presided. At trial, Judge Haskell disclosed to the parties that he was socially acquainted with a physician, Dr. Charles Allen, who was going to be a witness at trial, and that he would be inclined to believe Dr. Allen’s testimony. The parties agreed to proceed with the bench trial despite Judge Haskell’s familiarity with Dr. Allen. Jacobson argues that Judge Haskell committed reversible error by failing to recuse himself from the matter once he knew Dr. Allen would be testifying at trial.

[¶ 2] We affirm the district court criminal judgment. Judge Haskell, in compliance with the North Dakota Code of Judicial Conduct, disclosed on the record information he believed the parties might consider relevant to his disqualification and provided an opportunity for the parties to agree to waive his disqualification. Jacobson agreed to proceed with Judge Haskell conducting the bench trial. After Judge Haskell found Jacobson guilty of assault, Jacobson moved for a new trial. We conclude that Judge Haskell was disqualified from the proceeding. His disqualification, however, did not require him to immediately remove himself from the proceeding. He properly disclosed information relevant to the question of disqualification. The parties agreed to proceed, thus waiving Judge Haskell’s disqualification. Moreover, when a party has knowledge of information relevant to disqualification and waits until the final decision of the judge to object to the judge’s involvement in the case, the objection is untimely and results in a waiver.

I

[¶ 3] Jacobson was charged with assault. He waived his right to a jury trial, and the case came before Judge Haskell for a bench trial. During the bench trial, the State called Dr. Allen, an emergency room physician who treated the victim of the alleged assault, as a witness. When Dr. Allen was called to the stand by the State’s Attorney, Terry Elhard, the following dialogue ensued between the court, Elhard, and Jacobson’s counsel, Donavin Grenz:

Mr. Elhard: State will call Dr. Charles Allen.

The Court: All right. Hang on a second. I don’t know if this is going to make a difference to either party but I hadn’t gotten a witness list or anything prior and Dr. Allen and I are acquaintances. Our sons played baseball together. If that makes a difference to either of you, you better let me know now and I’ll recuse myself. I hate to do that after coming down here and everything, but like I said, I didn’t have any witness list or any way to know [who] the witnesses were until I walked in this morning — so if that’s going to be a problem for you Mr. Grenz.

Mr. Grenz: Your Honor, it’s almost impossible to make that determination. I don’t know what to say, Your Honor. Clearly you believe that it may have an impact because of your knowledge.

The Court: Well let me put it this way. If Dr. Allen’s credibility is going to be an issue, which in most cases witnesses are, I would be inclined to believe what he had to say because I’ve known him for several years in a couple different contexts and I find him to be a credible, believable person. I mean if all he’s going to be testifying to is fact things where credibility isn’t much of an issue, then that may make a differen[ce]. I don’t know what else I can tell you. Obviously I would do the best I can not to let that unduly influence me, but as I say, I’ve known him for several years and I would find him believable in most circumstances.

Mr. Grenz: Well Your Honor, based upon the discovery that we made, I can’t find any statements or anything else that were given by the doctor. Again, if all he’s going to do is testify in regard to what the pictures show and confirm that that was her condition, that’s one thing, but if he’s going to testify to anything else, I’d ask that that be stricken.

Mr. Elhard: ... I have it in my discovery that he was a witness that we were going to call.

Mr. Grenz: He made that disclosure—

The Court: Well let me stop you. I’ll allow Dr. Allen to testify as to his examination in the emergency room, however if there’s any records or documents that weren’t provided to the defense, he’s not going to be able to introduce those into evidence or testify from them.

Mr. Elhard: Okay.

Mr. Grenz: With that proviso, Your Honor.

The Court: All right. Dr. Allen, if you want to come up here please and be sworn.

Dr. Allen provided testimony regarding the victim’s injuries. His testimony indicated the injuries were caused by blunt force. Jacobson’s attorney did not object to any of Dr. Allen’s testimony. Other testimony was provided by the victim, Jacobson, the victim’s treating nurse, and the Burleigh County Sheriffs Department investigator who was present during Dr. Allen’s examination of the victim.

[¶ 4] The district court found Jacobson guilty of assault. Jacobson moved for a new trial. Jacobson maintained that, after Judge Haskell disclosed his relationship with Dr. Allen, Jacobson was improperly forced to choose between proceeding with the trial or incurring additional costs by postponing the trial. Jacobson argued that Judge Haskell should have recused himself. The district court denied the motion for a new trial.

[¶ 5] Jacobson appeals the district court criminal judgment. He argues Judge Haskell committed reversible error by failing to recuse himself once he knew Dr. Allen would be testifying at trial.

II

[¶ 6] It is important that our judicial system maintain an appearance of propriety. See Sargent County Bank v. Wentworth, 500 N.W.2d 862, 880 (N.D.1993). The Due Process Clause of the United States Constitution entitles parties in both criminal and civil matters to an impartial, neutral, and disinterested tribunal. State v. Anderson, 427 N.W.2d 316, 320 (N.D.1988). The public’s respect and confidence in the integrity of the judicial system “ ‘can only be maintained if justice satisfies the appearance of justice.’ ” Wentworth, 500 N.W.2d at 877 (citation omitted). A judge is presumed by law to be unbiased and not prejudiced. Farm Credit Bank of St. Paul v. Brakke, 512 N.W.2d 718, 720 (N.D.1994). However, to maintain the judiciary’s appearance of propriety, a judge is to recuse himself from any matter in which the judge’s impartiality would be questioned. See N.D.Code Jud. Conduct Canon 3(E).

[¶ 7] A judge’s disqualification decision is directed by the North Dakota Code of Judicial Conduct. Wentworth, 500 N.W.2d at 877. The Code mandates that a judge shall avoid impropriety and the appearance of impropriety. N.D.Code Jud. Conduct Canon 2. “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned_” N.D.Code Jud. Conduct Canon 3(E)(1). The Code provides a non-exhaustive list of instances when a judge must recuse himself from a matter:

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

(c) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;

(d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;

(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.

Id. An objective standard is used to determine whether a judge must recuse himself. Brakke, 512 N.W.2d at 721. “[T]he judge must determine whether a reasonable person could, on the basis of all the facts, reasonably question the judge’s impartiality.” Id. “Even without intentional bias, disqualification can be essential to satisfy the appearance of justice.” Wentworth, 500 N.W.2d at 877-78.

[¶ 8] We have held that a judge is disqualified from cases in which a reasonable person could have reasonably questioned the judge’s impartiality on the basis of all the facts. See, e.g., Wentworth, 500 N.W.2d at 879-80 (holding the district court judge erred by failing to disqualify himself from a bench trial in a complex foreclosure action because the judge was represented in an unrelated matter by an attorney who was a member of a law firm representing one of the parties in the foreclosure action); Matter of Estate of Risovi, 429 N.W.2d 404 (N.D.1988) (holding the district court judge should have recused himself from a matter because he gave legal advice regarding the estate at issue to one of the parties before becoming a judge). We have also held that a judge properly presided over a matter in which a reasonable person could not have reasonably questioned the judge’s impartiality on the basis of all the facts. See, e.g., Brakke, 512 N.W.2d 718 (N.D.1994) (holding that under the events in the case the district court judge’s recusal from the matter was not mandated by the fact that the judge had been named as a defendant in another suit by a party in the matter before the judge); State v. Dailey, 2006 ND 184, 721 N.W.2d 29 (holding the district court judge was not disqualified from sentencing a defendant for manslaughter and driving under the influence when the judge made statements to the jury after the jury entered its verdict about the defendant’s pri- or driving under the influence convictions and the defendant’s prior involvement in drug court).

[¶ 9] When a judge is disqualified, the judge must either withdraw from the matter or disclose the information relevant to the judge’s disqualification to the parties and ask the parties to consider waiver of the disqualification. See N.D.Code Jud. Conduct Canon 3(F); Estate of Risovi, 429 N.W.2d at 406. Withdrawal is the only permissible action in instances when the judge is personally biased or prejudiced concerning a party or a party’s lawyer, or has personal knowledge of disputed evi-dentiary facts concerning the proceeding. N.D.Code Jud. Conduct Canon 3(F); Estate of Risovi 429 N.W.2d at 406. When withdrawal is mandatory, the judge must immediately withdraw from the proceeding. Estate of Risovi, 429 N.W.2d at 407. Disclosure is an option on any basis for disqualification other than personal bias or prejudice. N.D.Code Jud. Conduct Canon 3(F).

[¶ 10] When disclosure is a permissible course of action for a disqualified judge, and, thus, withdrawal from the proceeding by the disqualified judge is not mandated, the judge’s disqualification may be remitted under Canon 3(F), N.D.Code Jud. Conduct. Canon 3(F) provides,

A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

The commentary to Canon 3(F) explains that this procedure is designed to ensure that consideration of the question of remit-tal is made independently of the judge.

[¶ 11] A judgment may be reversed because of a judge’s violation of the North Dakota Code of Judicial Conduct. Wentworth, 500 N.W.2d at 879-80. However, “the failure to raise the question of judicial bias in the trial court ordinarily precludes our review of that question on appeal.” Delzer v. United Bank, 484 N.W.2d 502, 509 (N.D.1992).

Ill

[¶ 12] Jacobson was entitled to an impartial, neutral, and disinterested tribunal. He argues Judge Haskell committed reversible error by failing to disqualify himself after openly disclosing personal bias or prejudice in favor of the State’s expert witness. Jacobson asserts that Judge Haskell’s impartiality would reasonably be questioned because he offered to recuse himself and he admitted that he would be inclined to find Dr. Allen’s testimony credible. The State contends Judge Haskell did not indicate any bias or prejudice against the defendant. The State argues Judge Haskell’s social acquaintance with a disinterested expert witness did not mandate his recusal from the matter.

[¶ 13] Judge Haskell is presumed by law to be unbiased and not prejudiced. See Brakke, 512 N.W.2d at 720. Judge Haskell’s involvement in this matter was proper unless a reasonable person could, on the basis of all the facts, reasonably question his impartiality. Although a judge has a duty to recuse when required by the Code, a judge also has an “equally strong duty not to recuse when the circumstances do not require recusal.” See Center for Professional Responsibility, American Bar Association, Annotated Model Code of Judicial Conduct 187 (2004); cf. Brakke, 512 N.W.2d 718 (holding a judge should not disqualify when a party brings a frivolous lawsuit against the judge for the purpose of disqualifying him from the proceeding). Canon 3(B)(1), N.D.Code Jud. Conduct, imposes on a judge the duty to “hear and decide matters assigned to the judge except those in which disqualification is required.” Canon 3(B)(1) was added to the Code “to emphasize the judicial duty to sit and to minimize potential abuse of the disqualification process.” Center for Professional Responsibility, supra, at 188 (quoting ABA Standing Committee on 1990 Code, Legislative Draft 15 (1990)).

[¶ 14] Jacobson argues Judge Haskell was disqualified from Jacobson’s case because Judge Haskell’s social relationship with Dr. Allen evidenced an impermissible bias or prejudice against Jacobson. Jacobson further argues Judge Haskell should have recused himself because of his admission that he would find Dr. Allen’s testimony credible. Jacobson contends Judge Haskell was mandated to withdraw from the case by the North Dakota Code of Judicial Conduct because of his disqualification.

[¶ 15] Sections (E) and (F) of Canon 3, N.D.Code Jud. Conduct, govern disqualification. While under Canon 3(E)(1), N.D.Code Jud. Conduct, the list of circumstances under which a judge is disqualified from a matter is not exhaustive, the contents of that list are instructive. Canon 3(E)(1)(a), N.D.Code Jud. Conduct, indicates that a judge shall disqualify himself when “the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.” (Emphasis added.)

[¶ 16] Under Canon 3(F), N.D.Code Jud. Conduct, a judge disqualified under section 3(E)(1)(a) must immediately remove himself from the proceeding. Here, Judge Haskell’s familiarity with a disinterested expert witness did not relate to personal bias or prejudice concerning a party, a party’s lawyer, or personal knowledge of a disputed fact in the case and therefore does not fall into the section mandating disqualification. See Canon 3(E)(1)(a). An appearance of partiality requiring a judge’s disqualification does not automatically result from a judge’s casual or social acquaintance with a witness. See Center for Professional Responsibility, supra, at 208. To impose such a rule could potentially have severe results, particularly in our primarily rural state. See In re Conduct of Jordan, 290 Or. 669, 624 P.2d 1074, 1075 (1981) (“judges cannot be expected to disqualify themselves in all cases in which they may be casually acquainted with parties or witnesses, particularly in smaller communities”).

[¶ 17] Although Judge Haskell was not disqualified by his mere familiarity with an expert witness, we agree with Jacobson that Judge Haskell’s admission that he would be inclined to believe Dr. Allen’s testimony where credibility is an issue created a situation in which Judge Haskell’s impartiality might reasonably be questioned. Judge Haskell said,

If Dr. Allen’s credibility is going to be an issue, which in most cases witnesses are, I would be inclined to believe what he had to say because I’ve known him for several years in a couple different contexts and I find him to be a credible, believable person. I mean if all he’s going to be testifying to is fact things where credibility isn’t much of an issue, then that may make a difference]. I don’t know what else I can tell you. Obviously I would do the best I can not to let that unduly influence me, but as I say, I’ve known him for several years and I would find him believable in most circumstances.

This statement reveals Judge Haskell felt a reasonable person might question his impartiality because of his inclination to believe the expert witness if credibility was an issue. What Judge Haskell said indicates he decided he was disqualified from the proceeding. Because his impartiality might reasonably be questioned on the basis of all of the facts, we conclude Judge Haskell was correct that he was disqualified under the North Dakota Code of Judicial Conduct from involvement in Jacobson’s ease.

[¶ 18] Under Canon 3(E) and (F), N.D.Code Jud. Conduct, once a judge is disqualified from a proceeding, the next question becomes whether the disqualification mandates the judge’s withdrawal from the proceeding or whether the judge can disclose the basis of the disqualification and ask the parties to consider whether to waive the disqualification. We conclude Judge Haskell was not mandated to immediately withdraw from this case under Canons 3(E) and (F), N.D.Code Jud. Conduct. Judge Haskell did not have a personal bias or prejudice concerning the State or Jacobson, or the lawyers, and he did not have any personal knowledge of any of the disputed evidentiary facts, which are the only circumstances that mandate immediate removal of the judge from the proceedings. He, therefore, had the option, under Canon 3(F), N.D.Code Jud. Conduct, of either withdrawing or disclosing to the parties on the record the basis for his disqualification and asking them to consider whether to remit disqualification. He chose to disclose information relevant to the question of disqualification to the parties in compliance with Canon 3(F) and provided an opportunity for them to remit his disqualification. By agreeing to proceed, the parties remitted Judge Haskell’s disqualification. See Pannell v. State, 71 S.W.3d 720 (Tenn.Crim.App.2001) (holding defendant, whose counsel engaged in colloquy with judge during pre-trial motions regarding facts relating to the judge’s disqualification which the judge revealed at that time, remitted disqualification of trial judge when defendant’s counsel indicated to the judge during that colloquy that the defendant did not object to the judge sitting as presiding judge in the case).

[¶ 19] We acknowledge that under the commentary of Canon 3(F), N.D.Code Jud. Conduct, the judge “must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose re-mittal after consultation” with their clients. N.D.Code Jud. Conduct Canon 3(F) cmt. In the present ease, Judge Haskell did not ask the parties and their lawyers to consider, out of his presence, whether to waive disqualification. He, therefore, did not strictly follow the procedure required by Canon 3(F), N.D.Code Jud. Conduct. That failure to follow the N.D.Code of Judicial Conduct is not excusable. While not an excuse, we do note that what happened is likely explained by the circumstances of this case. Judge Haskell did not know Dr. Allen was a witness prior to the beginning of the trial. The disqualification issue, therefore, did not arise until Dr. Allen was called to testify by the State. The inexcusability of Judge Haskell’s failure to follow the procedure outlined in Canon 3(F), N.D.Code Jud. Conduct, does not necessarily render Judge Haskell’s procedural missteps prejudicial.

[¶ 20] We recognize that the annotated Model Code of Judicial Conduct indicates that methods of obtaining a waiver of disqualification which deviate from the requirements outlined in Canon 3(F) are not valid. See Center for Professional Responsibility, supra, at 249. However, the authorities cited in the annotated Model Code in support of that proposition, all of which relate to judicial ethics and discipline, do not provide that, in order for a remittal of disqualification to be valid, the procedure outlined in Canon 3(F) must be strictly followed. See In re Platt, 269 Kan. 509, 8 P.3d 686 (2000) (holding public censure appropriate for judge who refused to automatically disqualify himself from proceedings involving attorneys against whom he was personally biased); In re Johnson, 341 S.C. 30, 532 S.E.2d 883 (2000) (holding public reprimand warranted when judge failed to disqualify herself in matter in which an arrest warrant was sought against her grandson); Ariz. Jud. Eth. Adv. Comm. Op. 97-2, 1997 WL 599607, at * 1 (Feb. 13, 1997) (stating “The remittal procedure of Canon 3F must be strictly followed,” in the context of an ethics opinion advising municipal judges that they should recuse themselves from cases in which a party is represented by a member of the municipal judges merit commission, but that remittal of disqualification is possible under Canon 3F). None of the authorities cited invalidate a remittal of disqualification on the basis that the procedure required by Canon 3(F) was not strictly followed. See id.

[¶ 21] The procedure of having the parties and their lawyers consider whether to waive disqualification out of the presence of the judge is to ensure the decision is made independent of any influence of the judge. N.D.Code Jud. Conduct Canon 3(F) cmt. The record in this case indicates that Judge Haskell never proposed a waiver of disqualification to the parties and never made any comment that could be construed as pressure to consent to his continuing to hear the case. The parties do not allege any such improper conduct; Jacobson does not argue he was denied an opportunity to discuss whether to waive Judge Haskell’s disqualification, nor does he argue the district court erred by failing to strictly follow the procedure required by Canon 3(F), N.D.Code Jud. Conduct.

[¶ 22] On the record, the parties agreed to proceed before Judge Haskell, after Jacobson asked Judge Haskell to restrict the scope of Dr. Allen’s testimony to testimony regarding his emergency room examination of the victim. Judge Haskell stated he would allow Dr. Allen to testify as to his examination in the emergency room, but not as to records not provided to the defense. During Dr. Allen’s testimony, Jacobson had the opportunity to make evidentiary objections regarding the questions asked of Dr. Allen and Dr. Allen’s responses. Jacobson did not object to any portion of Dr. Allen’s testimony. Jacobson also never moved to disqualify Judge Has-kell at any time thereafter.

[¶ 23] After the criminal judgment had been entered against him, Jacobson moved for a new trial. A party seeking to disqualify a judge from a proceeding must file a timely motion. See Center for Professional Responsibility, supra, at 187. It was improper for Jacobson to wait to see if the district court decision was favorable to him before moving for a new trial on the ground that Judge Haskell should have recused himself from the matter. See id.; see also United States v. Vadner, 160 F.3d 263, 264 (5th Cir.1998) (holding “[t]he most egregious delay — the closest thing to per se untimeliness — occurs when a party already knows the facts purportedly showing an appearance of impropriety but waits until after an adverse decision has been made by the judge before raising the issue of recusal”); Madsen v. Prudential Fed. Sav. & Loan Assn., 767 P.2d 538, 543 (Utah 1988) (quoting 46 Am.Jur.2d Judges § 202, at 225-26 (1969)) (“It is a well-recognized rule that an application for the disqualification of a trial judge must be filed at the earliest opportunity. The courts generally apply this rule with strictness against a party who, having knowledge of the facts constituting a disqualification, does not seek to disqualify the judge until an unfavorable ruling has been made.”).

[¶ 24] Even if strict compliance with the procedure outlined in Canon 3(F), N.D.Code Jud. Conduct, was required, Jacobson would not prevail on appeal because Jacobson waived his right to disqualification by failing to request disqualification until after Judge Haskell entered a criminal judgment finding him guilty of assault, and because he and his lawyer knew the facts that would form the basis of disqualification prior to entry of the judgment against him. Under the circumstances of this case, we hold Jacobson waived his right to disqualify Judge Has-kell by waiting until after the criminal judgment was entered against him to move for a new trial based on mandatory disqualification of Judge Haskell.

IV

[¶ 25] Judge Haskell complied with the North Dakota Code of Judicial Conduct and was not mandated to remove himself from this matter sua sponte. He was not disqualified because of his social acquaintance with a disinterested expert witness. However, Judge Haskell’s admission that he would be inclined to believe Dr. Allen’s testimony where credibility is an issue created an objective appearance of partiality constituting a disqualification. His disqualification, however, did not require him to immediately remove himself from Jacobson’s case because it did not arise from a bias or prejudice against the parties, the lawyers, or personal knowledge of disputed evidentiary facts. He had the option to disclose and did disclose on the record information relevant to the question of disqualification. He provided an opportunity for the parties to waive his disqualification. The parties agreed to proceed, thus remitting Judge Haskell’s disqualification. Although he did not strictly follow the procedure of Canon 3(F), N.D.Code Jud. Conduct, both parties agreed to proceed with him conducting the bench trial without any evidence in the record they did so because of comments by Judge Haskell. Moreover, Jacobson also waived his right to disqualify Judge Haskell by waiting until a criminal judgment was entered against him to raise the issue. We, therefore, affirm the district court criminal judgment.

[¶ 26] CAROL RONNING KAPSNER, J., concurs.